Epstein: Chicago Handgun Ban is Constitutional
Last week, the Supreme Court, as expected, decided to hear the case from the Seventh Circuit, National Rifle Association v. City of Chicago, which asks this simple question: Does the Second Amendment offer some protection against the state regulation of gun use? Judge Easterbrook held that it did not. To many gun supporters, the refusal to apply the Second Amendment to the states is a form of constitutional apostasy that places both Easterbrook--and the newly anointed Sonia Sotomayor, who sided with him--in the lower circles of Dante's Inferno. Not to be outdone, many gun opponents treat handcuffing the states on gun issues as an open invitation to Armageddon.
Putting the Constitution to one side for the moment, the good libertarian (who is always concerned with stopping the use of force) should take the view that both positions are overwrought. Gun regulation has two effects. First, it tends to limit the number of guns in circulation, which, all things being equal, should reduce the number of violent crimes, including gun deaths. But all things are not equal. Gun regulation also reduces the percentage of guns in the hands of law-abiding people, which in turn could embolden unlawful gun users to commit violent crimes. How these two effects net out is a hotly disputed empirical question, on which my sympathies are weakly with the opponents of gun regulation. Such uncharacteristic caution!
It is important, however, to sever one's views on the desirability of gun regulation and the question of its constitutionality at either the federal or state level. That constitutional question admits no simple answer but requires working our way through layers of constitutional doctrine that lawyers love and ordinary citizens dread. When we reach bottom, we come up with a split decision; as a matter of first principle, the answer should be no. As a matter of current Supreme Court jurisprudence, the answer is likely to be yes. The key inquiry is why do the two paths diverge?