Last Saturday, I questioned skeptics who claim that the 2nd amendment and its interpretation by the Supreme Court prohibits meaningful regulation of gun sales and manufacturing. Indeed, I argued that Heller and other rulings may well make certain forms of gun control more palatable by diverting fears that new laws set us off on a slippery slope towards more intrusive prohibitions.  I expand a bit on that here and speculate about what this might mean for political compromises on gun control.

The basic idea is simple: a constitutionally protected “individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home” makes outright prohibitions on owning, carrying, and using guns much less likely. Yet, it has little direct effect on other potential regulations, such as licensing and assault weapons bans. This takes away one potent argument against these rules: that they will ultimately lead to bans on owning and carrying guns. I applied the argument to assault weapons bans but I just found this quote from Harvard Law professor Mark Tushnet in the UCLA Law Review (non-gated, pdf) who makes the same argument for licensing and registration:

Oddly, Heller may actually ease the path to the adoption of regulations requiring that those who wish to possess handguns register their ownership, with the right to possess a gun contingent on satisfying licensing-like rules such as demonstrating one’s ability to use guns responsibly and accurately, and knowledge about safe storage of weapons. The reason is that gun-rights advocates had been able to portray registration and licensing requirements as one step toward gun-control proponents’ ultimate goal of gun confiscation. Heller rules out that goal as long as it stands. The slippery slope to gun confiscation is not quite as slippery after Heller, though gun-rights proponents can continue to argue that there is still some grease on the slope.

The same logic applies to an assault weapons ban. UCLA law professor Eugene Volokh has written extensively on slippery slope logics and has used the assault weapons ban as a prominent example in both his articles and blog posts. He opposes an assault weapons ban and is skeptical towards gun control more generally. Yet, he does not think that Heller has much of an effect on the constitutionality of a reasonably written assault weapons ban. This is professor Volokh in the same issue of the UCLA Law Review (pdf, ungated):

 Assault weapons bans might well be pointless, and might offend gun owners who want the freedom to choose precisely what sorts of guns they own. But this need not make assault weapons bans unconstitutional, if the courts focus on whether the law substantially burdens self-defense.

Quite aside from the debates about whether an assault weapons ban would be effective (more on that here) this creates an interesting dilemma for both opponents and proponents of gun control: do you strike a deal on legislation that reaffirms that the 2nd amendment guarantees an individual right to use firearms for traditionally lawful purposes but that outlaws a class of weapons most often associated with massacres? As any good political compromise, this contains something unpalatable for both sides. This may make it a poor piece of legislation or something that may just work. What do you think?

ps. With “both sides” I mean liberal democrats who wish to continue challenging the individual rights interpretation of the 2nd amendment on the one side and “pro-gun” Democrats and moderately pro-gun Republicans on the other side, who at the very least have to convince their constituents that they won’t tamper with their rights.

[Cross-posted at The Monkey Cage]

Erik Voeten

Erik Voeten is the Peter F. Krogh associate professor of geopolitics and global justice at Georgetown University.