Bearing arms.

Photographer: PAUL K. BUCK/AFP/Getty Images

The Logic of Gun Rights Puts Pistols in Pockets

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Much criticism of the gradual expansion of the constitutional right to bear arms by U.S. courts has focused on assault weapons and mass shootings. But gun-rights advocates are conquering another frontier: the regulation of handguns in urban space.

Yesterday, a federal district court struck down restrictions on carrying concealed handguns imposed by Washington, D.C. As of Wednesday, if you want to carry a concealed handgun in the nation’s capital, that’s your right. Maybe they should change the Wizards’ name back to the Bullets.

QuickTake Guns in America

On Tuesday, before this decision came down, I described the constitutional jurisprudence that has generated a systematic expansion in the meaning and reach of the Second Amendment right to bear arms. The district court’s decision fits the paradigm perfectly.

The Washington regulation says that, if you want a permit to carry a concealed handgun in the city, you have to explain why you have a good reason to fear injury to your person or property. Notably, the law doesn’t prohibit carrying a concealed gun altogether. And it permits ownership in the home, as required by Supreme Court precedent.

The court said that carrying weapons in public, outside the home, was at the very core of the Second Amendment right. Like other courts across the country that have been grappling with the meaning of the right, the court engaged in extensive historical discussion to conclude that early Americans frequently carried weapons with them.

Even the extremely peaceful Thomas Jefferson was included. The court noted that he once forgot a pistol at an inn and asked two acquaintances to pick it up for him.

I was disappointed to find no reference to Alexander Hamilton’s experience with dueling pistols. Perhaps the court thought that would be indelicate, given the way his story ended.

The court didn’t seem to care that the guns so ubiquitous in the cultural context of the founding generation were generally too large to be concealed in clothing – especially by gentlemen wearing breeches and a close-fitting jacket. This is originalism without attention to fashion – or to function.

Having determined that carrying weapons is at the core of the fundamental right to bear arms, the court said it would apply strict scrutiny, the toughest standard of judicial review, to the Washington regulation. That requires considering whether the government has a compelling interest, and whether the regulation has been narrowly tailored to achieving it using the least restrictive means possible.

The court had the good grace to acknowledge that preventing gun violence might be a compelling government interest. But it went on to say that Washington doesn’t necessarily have an interest “in reducing to the greatest extent possible the number of law-abiding, respectable citizens eligible to carry guns.”

With that, the court embraced the old slogan that if you outlaw gun ownership, only criminals will have guns.

The court then held that the regulation wasn’t narrowly tailored because the city would have to prove that its scheme made people safer than any less restrictive alternative. And it said it was “skeptical” that such proof could ever be possible. The regulation would only be narrowly tailored, he said, if it were “targeted at keeping guns away from people who are likely to misuse them or situations where they are likely to be misused.”

City lawyers tried to argue that the regulation simply restricted the time, place and manner of bearing arms, limitations that are permissible even when applied to the free-speech protections of the First Amendment.

But the court replied that the analogy was flawed – which of course it is. A law that prohibited you from speaking while on the street but let me speak while at home wouldn’t be permissible. The analogy to free speech is one that belongs to advocates of gun rights, not to the other side.

The U.S. Court of Appeals for the D.C. Circuit will have to review this decision. But it’s worth noting that, astonishing as the reasoning sounds, it makes logical legal sense once the right to bear arms is treated as a fundamental right comparable to free speech.

It’s a brave new world for gun rights. And we’d better be brave to be living in it.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Jonathan Landman at jlandman4@bloomberg.net