David H. Levitt

The Second Amendment Does Not Ban Gun Control – But That Is Not Enough

The Supreme Court’s ruling in District of Columbia v. Heller that the Second Amendment created a fundamental right for individuals to keep and bear arms for lawful purposes was hardly the death knell for gun control advocates. Developments since Heller establish a wide range of permissible restrictions well within the parameters established by the Court. But while restricting weapons is both legal and desirable, much more must be done to keep our public places safe from the types of mass shootings that recur all too often. It is not the law that is the problem – it is the public and legislative will to enforce existing laws that already restrict gun possession and to enact new laws that respond to observable concerns – both as to the types of weapons and ammunition as well as to those who should be permitted to have access.

As a centrist and a lawyer who often admired and agreed with Justice Scalia’s opinions – and the way he wrote them – I was profoundly disappointed by his poorly reasoned opinion in Heller. Not only did he abandon his usual strict textual approach to rely on historical evidence, but he clearly cherry-picked to find the historical evidence that supported his interpretation while ignoring the vast amount of historical evidence that can be found in Justice Stevens’ far superior dissent.

A side note perhaps but a point worth mentioning: with Heller the law of the land (rightly or wrongly), it was inevitable that the Second Amendment would eventually be applied to state and local legislation, not just the federal legislation at issue in Heller. Thus, when the Court turned to non-federal legislation two years later, in McDonald v City of Chicago, it correctly found (even though I disagree with Heller) that the Second Amendment applied to the states under the Fourteenth Amendment, just as past Courts had applied others of the Bill of Rights to the states. In this instance, Justice Scalia’s separate concurrence (which was not about gun control at all but rather about the nature and scope of judging – and a very apt rebuttal to Justice Stevens’ dissent) was magnificent.

In any event, given the current makeup of the Court and the recent appointment of Justice Gorsuch, the Heller interpretation of the Second Amendment is not going anywhere anytime soon. But that should not be a cause for despair, but rather for redoubled efforts. Even Justice Scalia took pains in his majority Heller opinion to render it extraordinarily narrow – primarily limited to self-defense in one’s own home. The opinion expressly approved of longstanding prohibitions on the possession of firearms or imposing conditions on ownership, possession, or use.

Subsequent jurisprudence has borne this out.  Federal Circuit courts have upheld restriction after restriction on types of weapons, where they may be carried, and persons who may possess them. This post is not the place for a full exposition of these constitutional restrictions, but they are many – and can be found in an excellent and recent November 2017 report by the Congressional Research Service (available at that accurately explains these developments in great detail. It should give heart to any ardent gun control advocate (I count myself as one) that gun control is doable, and constitutional if done well.

Gun supporters too often wrongly cite the Second Amendment as some sort of magic talisman without making or supporting policy arguments. We saw all too tragically in Parkland that the oft-made argument that a “good guy with a gun” is not a solution. Without here drawing any conclusions regarding whether the officer in question did or did not act properly (despite the rush to judgment about him by some), the fact remains that he was there, with a gun, but did not prevent or even mitigate the events. Moreover, turning our schools and other public places into armed camps has its own set of issues. The Wild West is not a desirable ideal.

Yet anti-gun advocates too often dismiss, and often even oppose, the other side’s points about the impact of mental illness and other conditions. Mr. Cruz is only the latest, and perhaps most blatant, example of a disturbed individual who had no business possessing any kind of weapon, much less an assault rifle. The failure to report him to the NICS system is as much to blame for this tragedy as the failure to outlaw AR-15 weapons. But Congressional partisanship continues to make the perfect the enemy of the good – a desire to get everything rather than incremental beneficial changes. Both sides of the aisle, for example, continue to delay action on the “Fix NICS” bill, with some Democrats insisting that they want more action on banning more weapons while some Republicans seek to tie its passage to allowing concealed carry across state lines. Both sides are wrong – the bill should stand on its own merits.

This failure is not new. The Sutherland Springs Texas church murderer, former airman David Kelly with a history of disqualifying behavior, also should not have had access to legal weaponry but was never reported to the NICS system.

Gun supporters point out that banning AR-15 weapons or raising the age limits for purchasing weapons would not have prevented some of the mass shootings: the Fort Hood shooter was military personnel with access to weapons, the Virginia Tech shooter was 23 years old and used handguns, and so on.

That is not an answer. Limiting access to some types of weapons will prevent at least some incidents – and that is reason enough for enacting and enforcing such limitations.

Nor is it even marginally valid to point to Israel to support gun ownership. As highlighted by this excellent article, Israel has quite significant restrictions on guns and who may possess them.

But limiting weapons – seemingly just about the only discussion point by the left – is simply not enough. No one set of actions will alone be sufficient. What is needed is a cloud of solutions both on the gun control side and the mental illness/who-can-possess side. As the parties fight with each other, that point is too often ignored.

When Mr. Cruz was reported to authorities, and when he posted his violent intentions on social media, the law should have permitted his weapons to be immediately confiscated. No, I’m not proposing “confiscation” of all firearms, but certain personality traits ought forfeit the legal right to possess guns. Nor am I proposing taking legally acquired property without due process, because I propose that due process be given to allow the person to prove that his or her rights ought not to be forfeited and the weapons returned, an appeal process. But in the meantime, until such proof is offered by the gun owner, the public would be safe, and the opportunity for the person to get help would be presented.

There are many proposals floating on the mental health side, but one worth noting further was the subject of an article in the February 27, 2018 issue of the Wall Street Journal, The proposed system is just that – a system – an organized program to locate and manage troubled individuals before bad things happen. We must explore such opportunities to prevent shooters from even becoming shooters.

No system is foolproof. Human error will always infect any system. Gaps will always exist in the laws and their enforcement. But even if, say, a ban on bump stocks or large ammunition magazines or the manufacture or sale of assault rifles would not prevent ALL such events, they would be useful and important if they prevented even one or limited the severity. As the Talmud says, whoever saves one life is as if he has saved an entire world.

About the Author
David H. Levitt practices intellectual property and commercial litigation law in Chicago, and is a pro-Israel activist.
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