Second Amendment Scrutiny


On the eve of oral arguments in District of Columbia v. Heller, here are a few articles that may be of interest to people following the case:

Alan Gura and Robert Levy, two of the lawyers representing D.C. resident Dick Heller in his Second Amendment challenge to his city's gun ban, summarize their arguments in the Legal Times.

The New York Times notes the division between Solicitor General Paul Clement and Vice President Dick Cheney regarding the level of scrutiny that gun control should get under the Second Amendment, mentioning the Robert Novak column I discussed last week.

The intra-administration split is also mentioned in The Washington Post's preview of the case.

Gura and Levy say the Supreme Court need not specify a level of review: "Because Dick Heller challenges a categorical ban on handguns, as well as a near-total prohibition on exercise of Second Amendment rights relating to long guns, the outcome of the case does not depend on applying a specific constitutional standard of review." But if the Court decides to set a standard, they add, strict scrutiny—meaning that regulations must be the least restrictive means of achieving a compelling government interest—is clearly appropriate, since the right to keep and bear arms, which grows out of the right to self-defense, is a fundamental right. They say regulations such as "the ban on felons possessing firearms, instant background checks for gun buyers, and sentence enhancements for using a gun in commission of a crime" would survive strict scrutiny.

In my column last week, I suggested that if D.C.-style gun control does not violate the Second Amendment, it's hard to imagine what sort of gun control would.