Laurence Tribe on "Sane Limits"

Constitutional law professor Laurence Tribe has an editorial in todays Wall Street Journal on the case regarding Washington DC's total handgun ban which will be coming before the Supreme Court shortly. His conclusion (if that's not too strong a word) is that the second ammendment does indeed protect some sort of individual right to bear arms (as opposed to the "collectivist" view, which holds that this merely protects the right of each state to maintain the National Guard) but that the court must refrain from overturning the ban based on a fully indivial interpretation because that would (in his mind) suggest that almost no limits could be placed on said individual right.

It is true that some liberal scholars like me, having studied the text and history closely, have concluded, against our political instincts, that the Second Amendment protects more than a collective right to own and use guns in the service of state militias and national guard units. Opponents of the District's flat ban on handgun possession have cited my words to the court and in newspaper editorials in their support.

But nothing I have discovered or written supports an absolute right to possess the weapons of one's choice. The lower court's decision in this case -- the D.C. Circuit Court of Appeals found the District's ban on concealable handguns in a densely populated area to be unconstitutional -- went overboard. Under any plausible standard of review, 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.

For the Supreme Court to go any further than this in overturning the lower court's decision -- for it to hold, for instance, that no firearms ban could violate the Second Amendment unless it were to prevent states from organizing militias in their collective self-defense, as the District appears to urge -- would gratuitously fan the flames of doubt about the court's commitment to core constitutional principles, and would save no lives in the process.

Equally foolish would be a decision tilting to the other extreme and upholding the lower court's decision simply because the right to bear arms is, judicial precedent to the contrary notwithstanding, a right that belongs to citizens as individuals. Such a holding would confuse the right to bear arms with a right to own and brandish the firearms of one's choosing.

Now, professor Tribe does something rather mischievious here in suggesting that if the total ban on handguns is overturned, there will thus be a right to "brandish the firearms of one's choosing". If he's going to talk about gun laws, he ought to be (and in his more considered moments doubtless is) aware that it is illegal even in areas with very open gun laws and concealed carry laws to branding the firearm of one's choosing. such brandishing is classified as "disturbing the peace" and gets the brandisher taken to jail and the gun confiscated.

I think he also errs (and shows a certain unfamiliarity or lack of care about gun use) when he says, "Under any plausible standard of review, 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."

What reasons might a citizen reasonably want to own guns for? Well, according to the constitution, in order to protect against tyrrany. For fighting against one's own government, the AK-47 is certainly traditional, though any weapon which is semi-automatic, a fires fairly small cartridge (and thus has low recoil), and possesses the capacity to function reliably with little maintenance will do. Still, though it might be fun to own an AK some day, I don't think this should be the priority assigned in what we make sure citizens have readily available. I have it in me to hope that the time when we are forced into resisting our own government by force of arms is rather distant.

Generally, it's argued that citizens mostly have the right to use guns for sport: hunting, target shooting and even (according to Senator Obama) fishing. Hunting requires a rifle or shotgun. Target shooting (especially if done at an indoor range in the city) is at least as often done with handguns as with rifles. I'm not clear how you fish with a gun, other than shooting fish in the proverbial barrel.

Honestly, though, if I lived in DC, one of the reasons I would have near the top of my mind would be potentially using a gun to protect myself and my family in our home. In the close confines of a house or apartment, a handgun is much more maneuverable than a long gun. Handguns also fire larger, slower bullets which in most cases will not travel through walls and injure innocent people three apartments away. (If you shot at an intruder in your apartment with a deer rife, you could easily kill someone several several apartments away.)

So there's definitely a reason aside from concealment (which is generally illegal without a license anyway) that people want to be able to own handguns in a place like DC. Dr. Tribe seems either not to know this, or perhaps to have allowed his political instincts (which he has stated oppose the individual ownership of guns) to overcome his ability to think clearly about the issue.