If courts made their decisions based on public opinion, the case that the U.S. Supreme Court will hear today on the District of Columbia’s handgun ban would seem to be easy to decide. The polls and the sheer number of those filing amicus briefs support an individual right to owning guns. Yet, the Justice Department’s brief, while technically also supporting an individual right, has made this debate much more complicated and, for the first time in American history, even compelled a vice president to file his own brief.
A Gallup poll in February found that 73 percent of Americans believe that Second Amendment protects an individual right. On top of that, 305 members of Congress, 31 states, and the Department of Justice all make the same claim. Support is bipartisan. On the other side, only a minority of Democrats — 18 members of congress and attorney generals from five states — signed briefs arguing that it isn’t an individual right.
Even among presidential candidates, Hillary Clinton, John McCain, and Barack Obama all reach the conclusion that there is an individual right to owning guns. Prominent liberal Democratic legal academics such as Akhil Amar, Sanford Levinson, and Laurence Tribe have reached similar conclusions.
Perhaps all this is not surprising given that the Second Amendment is part of the Bill of Rights, and everyplace else in the Constitution that discusses “the right of the individual” the Supreme Court has consistently interpreted this phrase to mean precisely what it seems to mean, that an individual right, not the right of the government, is protected. Even if there were any remaining doubt, the debate over the 14th Amendment, which applies the Bill of Rights to the states, made it clear that Congress wanted to protect blacks against Southern states that were trying to disarm them after the Civil War.
Yet, all that agreement hides a very significant difference. The debate today will likely be over what protection is given this individual right.
Some, such as the vice president, the 305 members of Congress, and the 31 states, want to treat the Second Amendment like the rest of the Bill of Rights, requiring the same hurdles for the government to justify that a regulation is “reasonable.” Others, such as the Bush Department of Justice, argue that an “unquestionable threat to public safety” from unregulated guns requires that a lower standard must be adopted. Strongly hinting that D.C.’s handgun ban and requirement that long guns always be kept locked and unloaded could be upheld under this lower standard.
But this public-safety argument faces serious problems. After the ban went into effect in early 1977, D.C.’s murder rate rose dramatically. Only in one year since the ban has the murder rate gotten as low as it was in 1976. But it is not just that D.C.’s murder rates rose, they rose dramatically relative to other cities. In the 29 years that we have data after the ban, among the 50 largest cities, D.C.’s murder rate was either first or second for 15 years and fourth for another four years. By contrast, in 1976 D.C.’s murder rate ranked 15th. Over all, violent crime also soared.
But these problems don’t just represent something unique about D.C. Chicago experienced an increase after its ban in 1982. Even island nations from Ireland to Jamaica, whose borders are relatively easy to control, have experienced large increases in murder and violent crime after gun bans. For example, after handguns were banned in 1997, the number of deaths and injuries from gun crime in England and Wales increased by an amazing 340 percent in the seven years from 1998 to 2005.
There is real irony about the Justice Department argument. It is the old, oft derided “slippery slope” argument so often used by opponents of gun control. The Justice Department worries that if the government can’t ban handguns, it won’t be able to ban private ownership of machine guns. The specter of machine guns is raised ten times in their brief.
No one expects the court to completely end gun control any more than the First Amendment’s “Congress shall make no laws” has prevented the passage of campaign-finance regulations. But a lot is at stake today before the Supreme Court. If D.C.’s handgun ban is upheld, the Second Amendment will hold little practical meaning. Even if the ban is struck down, the decision will likely only rule out the most extreme of regulations: a complete ban on handguns. – John R. Lott Jr. is the author of More Guns, Less Crime (University of Chicago Press, 2000) and a senior research scientist at the University of Maryland.