May 30, 2002

D.C.’S HANDGUN BAN ordinance is being challenged by public defenders representing two men charged with violating it. They say that it violates the Second Amendment’s right to keep and bear arms.

It seems to me that this challenge is likely to succeed — if, indeed, the Justice Department will even defend against it. It is the Justice Department’s position that the Second Amendment protects an individual right to arms, subject to reasonable regulations. D.C.’s outright ban goes far beyond “reasonable regulation.” Challenges to state gun control laws under the Second Amendment are complicated by the question of “incorporation,” since not all of the Bill of Rights is applicable to the states, and the Supreme Court has never addressed the question of whether the Second Amendment is incorporated. (In fact, it hasn’t taken a relevant Second Amendment case since it developed the doctrine of incorporation).

But the District of Columbia isn’t a state; it’s the federal government. So questions of incorporation don’t matter in this context. And the ban — which amounts to complete gun prohibition — goes far beyond reasonable regulation. (The fact that gun crime in the District skyrocketed after the ban makes it hard to defend on the facts, too.) The Justice Department should simply admit that the D.C. ordinance violates the Second Amendment; if it doesn’t do that, it’s going to have a very hard time explaining how it’s consistent with the views that Ashcroft has expressed.

About the only weakness is that — based on the Post story — the men are charged only with carrying a pistol without a license, rather than with possession of a pistol without a license. The Second Amendment (in my view, and that of most, but not all, scholars) doesn’t necessarily protect a right to wear a gun, only the right to own one. That’s about the only “out” I can see here. Otherwise it presents the question rather squarely. Stay tuned.

UPDATE: Eugene Volokh, as he is wont to do, has come up with a new angle on this case.