February 13, 2013
Rivkin and Grossman on the Second Amendment, Assault Weapons, Magazine Size
President Obama's proposals to ban assault weapons and limit the size of magazines violates the Second Amendment, according to David B. Rivkin, Jr., and Andrew M. Grossman writing in last week's WSJ. They say that the ban and limit would interfere with the Second Amendment right to bear arms for self defense--a right, they say, that ought to be applied every bit as rigorously as the First Amendment right to free speech.
Lots of gun-rights advocates have made similar claims, but Rivkin and Grossman's piece may be particularly notable: Rivkin was on the early edge of certain other constitutional claims that many did not take seriously at the time but that were nevertheless ultimately vindicated. Recall that he argued early in the debates that the universal coverage provision, or the so-called individual mandate, in the Affordable Care Act exceeded congressional authority under the Commerce Clause. (Rivkin made that argument on the pages of the WSJ, too.) Many didn't take this seriously. But last summer, the Court said he was right (although it also upheld congressional authority to enact the provision under its taxing power, which Rivkin also argued against).
Anyway, here's Rivkin's case against President Obama's proposals:
[Assault weapons] may look sinister, but they don't differ from other common weapons in any relevant respect--firing mechanism, ammunition, magazine size--and so present no greater threat to public safety. Needless to say, the government has no legitimate interest in banning guns that gun-controllers simply do not like and would not, themselves, care to own.
Also constitutionally suspect are restrictions on magazine size. There is no question that a limit of 10 rounds (as the president has proposed) or seven (as enacted by New York state last month) would impair the right to self-defense. A magazine with 10 rounds may provide adequate protection against a single nighttime intruder. But it may not: What if there are two intruders?
In short: assault weapons and 10-round magazines may be necessary for self-defense, and there's no good reason for government to restrict them.
Rivkin and Grossman argue that Second Amendment restrictions--even including things like requirements to carry gun insurance and even especially high taxes on ammunition--ought to get the full First Amendment treatment: strict scrutiny, or something close to it.
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It seems worth noting that, even assuming the Second Amendment is to be given the same "rigorous" protection as freedom of speech, that the courts have long applied diminished scrutiny to a variety of regulations of speech, including "content-neutral" regulations (a joke after Hill v. Colorado), regulation of symbolic conduct, and regulations viewed through the grotesque "secondary effects" doctrine. Thus, so long as the government is not trying to take away our guns, a significant level of regulation should be constitutionally permissible. Unless there has been inadequate protection for our right to freedom of speech all along.
Posted by: Jeffrey G. Purvis | Feb 14, 2013 11:06:20 AM