Epstein Reflects on Gun Regulation
Just today, I put my name on a letter--along with well over 50 other distinguished constitutional law professors--to support the proposition that some of the major gun control initiatives being considered in Washington are constitutionally permissible under the current legal regime established in the 2008 Supreme Court decision in District of Columbia v. Heller.
The Heller decision speaks, of course, with a split tongue. On the one hand, it makes it clear that a low form of rational basis review is not high enough to meet the constitutional standards for gun regulation. Yet, on the other hand, the case does not make clear just how high the bar should be set before the Second Amendment blocks the passage of regulations on constitutional grounds.
It is well agreed by everyone that, in constitutional discourse, the outcome of the case often turns on the standard of review. But how should that be determined? As a matter of first principle, I am opposed to the use of the low rational basis test in any area of inquiry, thinking that it leaves too much running room in the hand of government. But the exact height of the barrier depends on the clarity with which a sitting judge or justice can tell right from wrong results. There are many cases where I don’t think it is that hard. Accordingly, I take the view that most economic regulation of competitive activities should fall by the wayside in any case where the regulation tends to monopoly.