No subject

[Volokh, Eugene]

        David's general question is a fascinating one -- much like the
question of what speech is protected under an individual rights reading of
the 1st Am or what searches and seizures are prohibited under an individual
rights reading of the 4th Am, both questions that have occupied courts and
scholars for decades.

        Nonetheless, the claim that such a handgun ban is "not remotely
conceivable" seems to be simply mistaken.  First, such a ban *currently
exists* in D.C., which bans the possession of all handguns (though subject
to a grandfather clause that allows handguns owned by residents before 1976)
and the possession of rifles and shotguns unless they are locked and
unloaded.  D.C. Code §§ 6-2311, 6-2312, 6-2372.  That this ban (set up by an
agency of the federal government) applies only in one city seems to me
hardly relevant; I take it that few believers in an individual right to an
abortion would be much mollified by the fact that a particular ban on
abortions applies only in a few jurisdictions.

        Second, such bans are now in effect in Chicago and some suburbs; in
1982 such a ban was enacted in San Francisco, though it was ultimately
struck down on state law preemption grounds; and I believe that in the 1980s
a California initiative proposing such a ban got about 40% of the vote.  If
the 2nd Am secures an individual right, we'd have to face the question
whether the right is incorporated via the 14th Am -- and there's lots of
contemporaneous evidence that the Ratifiers of the 14th Am were just as
concerned about incorporating the right to keep and bear arms as they were
about other rights.

        Third, all these points, coupled with the periodic bills introduced
in Congress to ban handguns nationwide, with the editorial statements by the
L.A. Times and the Washington Post, and with support of up to 40% or 47% in
nationwide polls for handgun bans (see Kleck, Point Blank, tbl. 10.2, at
346, citing Yankelovitch 1995, CBS 1995, Gallup 1986), show that it's far
from inconceivable that, with some changes in public opinion, total handgun
bans even on a federal level may well be enacted.  Surely if Sen. Chafee or
Reps. Rush, Owens, or Clay (see
http://www.gunscholar.org/gunban.htm#politicians) propose federal handgun
bans, it's quite sensible to inquire whether they are constitutional, even
if we think that today, when proposed on a nationwide basis, they will fail.

        I say this not just to correct a particular factual misperception;
rather, I think this casts light on why some people oppose even relatively
modest gun controls.  When handguns *are* banned in some places, when
politicians propose nationwide handgun bans, when leading media entities do
the same, when polls suggest that many people are willing to endorse them,
and when some gun control advocates specifically say that they are proposing
certain proposals to "desensitize" the citizenry to future proposals,
http://www.gunscholar.org/gunban.htm#steps, people reasonably get worried.
If there was no movement aimed at banning abortions, the debate about
partial-birth abortion bans would probably be much less heated; if there was
no movement aimed at banning guns, there'd be a lot more room to compromise
on more modest gun proposals.  This isn't necessarily directly connected to
the constitutional question (though slippery slope arguments do of course
come into play in constitutional debates), but I think it does explain why
the debate arouses such passions even as to very narrow proposed
regulations.

David Yassky writes:

> I too am curious about the specific conclusions implied by general
> positions about the Second Amendment.  Do those who think the Amendment
> creates an "individual right" believe the federal law prohibiting private
> possession of machine guns is unconstitutional?  If not, why not?  If so,
> then how about a statute prohibiting private possession of semi-automatic
> handguns other than revolvers (not that enactment of any such law is
> remotely conceivable, Eugene's collection of quotations from gun-ban
> advocates notwithstanding)?
> 
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