The Long and the Short of the Second Amendment


If you, like me, were wondering how support for the D.C. gun ban can be reconciled with the belief that the Second Amendment protects an individual right to arms, you might want to check out Harvard law professor Laurence Tribe's op-ed piece in today's Wall Street Journal. Tribe, who switched to the individual-right view of the Second Amendment several years ago, nevertheless urges the Supreme Court to uphold the D.C. law when it considers the case later this month. He says the Second Amendment does not guarantee "an absolute right to possess the weapons of one's choice" and so does not rule out a handgun ban. "Under any plausible standard of review," he writes, "a legislature's choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms. "

Tribe ignores another aspect of D.C.'s gun law, the provision requiring that even long guns be kept "unloaded and disassembled or bound by a trigger lock." That requirement makes it pretty hard to use any gun for self-defense, except maybe as a club. But Tribe has another argument against accepting the D.C. Circuit's conclusion that the gun ban is unconstitutional:

It would transform a constitutional provision clearly intended and designed to protect the people of the several states from an all-powerful national government into a restriction on the national government's uniquely powerful role as governor of the nation's capital, over which Congress, acting through municipal authorities of the District, exercises the same kind of plenary authority that it exercises over Fort Knox.

Using a case about national legislative power over gun-toting in the capital city as a vehicle for deciding how far Congress or the state of California can go in regulating guns in Los Angeles would be a silly stretch.

In other words, the Second Amendment, which says "the right of the people to keep and bear arms shall not be infringed," simply does not apply in the District of Columbia. So I guess we can forget that part about handguns vs. long guns.

On a blog devoted to the D.C. gun case, Alan Gura, one of the attorneys representing plaintiff Dick Heller, seems surprised by Tribe's position:

This is quite a change from Prof. Tribe's position in May 2007. At that time, in correspondence with us, Tribe said he would consider playing a "more central role" in our case, with the aim of helping us appeal to justices he perceived to be centrist and left of center. It's difficult to see how his current position would accomplish that goal.