Take It up with the NRA

I fear that Dennis Henigan has somehow mixed up his blogs.  This blog — Cato Unbound — is an exchange between Henigan, Kopel, Chemerinsky, and Levy.  The blog on which Henigan has most recently posted is an exchange between Henigan and the NRA — somewhat complicated by the fact that the NRA is not a participant.  Fully one-half of Henigan’s latest post is a critique of the NRA, its positions, and its tactics — everything from its advocacy of slippery slope arguments to its fight against corporations that want to keep guns off their private property.  In a proper forum, I’m sure the NRA would counter Henigan’s critique.  But this is not that forum; and I am not the NRA’s representative.  Indeed, as Henigan well knows, I join him in opposing NRA claims that corporations are bound by the Second Amendment to allow guns in their parking lots. 

That said, I can’t resist a brief comment on “the NRA’s core strategy,” according to Henigan, “of keeping gun owners in a perpetual state of fear and anxiety about gun confiscation.”  If true, that would surely be a bizarre and ineffective strategy.  After all, 44 states secure an individual right to keep and bear arms under their own statutes or constitutional provisions.  Forty-eight states allow concealed carry with varying degrees of administrative discretion.  Confiscation isn’t even on the radar screen, except perhaps in a small handful of municipalities and counties legislating under delegated state power.  Whatever plans Pete Shields may have had for confiscation in his early days at the Brady Center, those plans lost all momentum with the enactment of permissive state laws, long before the Heller decision.  Gun control is a losing issue for would-be confiscators.  That’s why even liberals, like Obama, find it necessary to embrace — or perhaps pretend to embrace — an individualist view of the Second Amendment.     

Also from this issue

Lead Essay

  • District of Columbia v. Heller: What’s Next? by Robert A. Levy

    Robert A. Levy, Cato Institute senior fellow in constitutional studies, was co-counsel to Mr. Heller in District of Columbia v. Heller, last month’s controversial Supreme Court case in which Washington, D.C.’s ban on gun ownership was ruled unconstitutional on the basis of a Second Amendment individual right to possess firearms. But what does Heller really imply for the future of gun rights and gun control in America? In this month’s lead essay, Levy asks and gives his answers to the questions on the minds of gun lovers and gun controllers alike. What gun regulations will now be permissible? Will the Second Amendment be “incorporated”? Did the court engage in “judicial activism”? And what’s next for the on-the-ground politics of gun control in Washington, D.C. and beyond? Levy’s tightly reasoned essay marks the beginning of the new American debate about guns after Heller.

  • The Heller Paradox: A Response to Robert Levy by Dennis A. Henigan

    In his vigorous reply to Levy’s lead essay, Dennis A. Henigan, Vice President for Law and Policy at the Brady Center to Prevent Gun Violence, argues that Heller was “a prototypical misuse of judicial power to advance an ideological agenda” based on Justice Scalia’s “transparently inconsistent and manipulative” reading of historical texts. Nevertheless, Henigan argues that “the Heller decision should prove to be a sharp disappointment to the gun lobby and other Second Amendment extremists” because “the lower courts are likely to interpret Heller as giving a constitutional green light to virtually every gun control law short of a handgun ban.” Moreover, Henigan argues, by decisively forbidding outright bans, Heller has defused the argument that gun control regulation sets us on a slippery slope to a society in which private citizens are not allowed to own guns. And therein lies the Heller paradox. By making Second Amendment rights clearer, the Court has made gun control easier.

  • The Right to Bear Arms and “Sensible” Gun Laws by David Kopel

    In his reply, Second Amendment scholar David Kopel argues that the Constitution’s mention of “the” right to bear arms implies the right pre-existed the government, and that the point of the Second Amendment was to rule out its infringement. That pre-existing right, Kopel maintains, was “the right of having arms for personal defense,” and there is little evidence for a pre-existing militia right. Kopel agrees with Dennis Henigan that “the Heller decision … will probably not affect most gun laws in the United States, even assuming incorporation in the 14th Amendment,” but differs on the nature of “sensible” gun control, and offers a useful and informed discussion of current regulations. Regarding Washington, D.C.’s newly minted regulations, Kopel predicts that “the new law will be declared void by the D.C. Circuit Court of Appeals, and that the Supreme Court will deny cert.”

  • The Heller Decision: Conservative Activism and its Aftermath by Erwin Chemerinsky

    In his reply to Robert Levy’s lead essay, constitutional scholar Erwin Chemerinsky argues that Scalia’s majority opinion in Heller was based on a shoddy application of Scalia’s own judicial principles and “powerfully demonstrates that Justice Scalia’s constitutional rulings … ultimately are animated by his conservative politics.” According to Chemerinsky, by ignoring a long history of precedent and throwing into question “countless other statutes and ordinances,” the decision “showed that conservative rhetoric about judicial restraint is a guise that is used to oppose rights [the conservatives on the Supreme Court] don’t like.” Chemerinsky further criticizes the court for failing to clarify the level of scrutiny to be applied to gun regulation, and suggests that it should be the “reasonableness” test. Heller will be incorporated, Chemerinsky predicts, but will unlikely affect the coming elections.

The Conversation