In a recent article on the Dick Metcalf controversy, a number of readers suggested that I might clarify my views on what restrictions on the Second Amendment were appropriate. And so I shall. This, the first of a two-part series, will focus on the law as it exists.
Let’s keep in mind that the Second Amendment is a fundamental right based on the natural, unalienable right to self-defense. Firearms are protected because they are the most common, usual, and effective weapons used to secure the right to self-defense. Therefore, the standard that is applied in judging whether a given restriction on that right is constitutional is “strict scrutiny.” The Cornell Legal Information Institute describes it thus:
Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws. To pass strict scrutiny, the legislature must have passed the law to further a ‘compelling governmental interest,’ and must have narrowly tailored the law to achieve that interest. A famous quip asserts that strict scrutiny is ‘strict in name, but fatal in practice.’
For a court to apply strict scrutiny, the legislature must either have significantly abridged a fundamental right with the law’s enactment or have passed a law that involves a suspect classification. Suspect classifications have come to include race, national origin, religion, alienage, and poverty.
Cornell’s definition acknowledges that the devil is always in the details. While strict scrutiny might suggest that the government must clear very high barriers in order to infringe upon the Second Amendment, in practice, the hurdles might be knocked flat before the race begins.
We know that there is no such thing as an unrestricted right, and that in Heller (District of Columbia Et Al. v. Heller), the Supreme Court acknowledged this reality, while affirming that the right to keep and bear arms is a pre-existing, individual right:
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings or laws imposing conditions and qualifications on the commercial sale of arms.
What arms, then, are allowable? Heller directly suggests that “unusual and dangerous” arms may be restricted, and suggests, while not specifically saying, that fully automatic military-style weapons such as the M-16 (which it does specifically mention) may be restricted. However, the Court made clear that the government may not ban entire classes of the weapons commonly possessed and used for lawful purposes such as self defense, and uses handguns as a particular example of lawfully possessed arms:
Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.