This debate took place following the publication of “America’s Moral Failure on Guns“, which called for a law to prevent people on terror watch lists from purchasing guns — a popular cause among Democratic legislators in the wake of the Orlando massacre.

T. Whitmore: Putting aside Mr. Underwood’s various straw-men, I have some questions on the terror watch list: Do listed citizens lose access to all of their well-defined constitutional rights, or just one? What is the principled grounds on which we draw this distinction between rights? Doesn’t the proposal to penalize suspects as if they were criminals violate procedural due process under the Fifth Amendment?

Frank Underwood: The question of due process for the no-buy list is a good one, but other anti-terrorism laws like the no-fly list also restrict certain privileges without a full trial. As Adam Winkler argues in the Times, Congress could authorize a no-buy list, which the Attorney General could then put people on, with probable cause and the permission of a court. Practices like these have been thought to be constitutional when applied to other security measures like wiretapping. At the very least, if we don’t have an assault ban, people on the terror watch list should be barred from purchasing assault weapons — as argued above, the right to own such weapons isn’t constitutive of the second amendment’s individual right.

TW: You’re right about Winkler’s suggestion. We could create a no-buy list, where membership is determined through standard legal processes. Because there would be due process and habeas corpus, I’d have no principled objection to the program.

Nonetheless, I don’t think Winkler’s suggestion would be effective; the no-buy list would be much smaller than the no-fly one. It might also be counterproductive; do we want to tell terror suspects that we’re watching them, and that they should move from insecure to encrypted communication? If I were in Congress, I could support some form of a no-buy list, but I wouldn’t love it.

But as I understand it, you’re also making a stronger argument than Winkler—that because the Second Amendment, properly understood, does not protect the right to own an assault weapon, we can bar terror watch list members from owning assault weapons.

Much depends on the qualifier “properly understood.” It is certainly possible that a Clinton 2.0 Supreme Court could revise or overturn Heller, moving jurisprudence where you want it to go. Only then would Congress have the right to pass your preferred remedy.

But your post isn’t about Congress in 2017 or 2018; it’s about the last five years. You are frustrated that the sitting Congress hasn’t passed a terror weapons ban, and you think it has the legal grounds to do so, assuming that the Second Amendment is “properly understood.”

I worry that this view blurs two levels of constitutionalism. In the first, judges—especially Justices on the Supreme Court—interpret the Constitution within their appropriate jurisdiction. Their duty is to determine the boundaries of what is constitutional and what is constitutionally protected. In the second, legislators operate within court-shaped constraints. To the degree that legislators disagree with the Justices over constitutional meaning, properly understood, they handle these disputes in court or in the nomination process. They don’t seek to defy well-established constitutional law with statutes.

Perhaps I misunderstand your view, but I take it to be quite different from the above. Whereas the standard view defers to courts on the proper meaning of the Constitution, I read you to be arguing that Congress and the courts have equal standing to interpret constitutional text. In short, if the Court gets a constitutional question wrong, Congress should act under the proper interpretation.

Is that a fair reading? I worry that such a view renders courts irrelevant, thereby weakening the many rights they protect.

 

FU: The question of the legality of an assault-weapons-only ban for those on the watch list becomes moot if we already accept the legality of a general ban with the conditions Winkler describes.

But it’s still interesting. I’d disagree that my argument makes the courts irrelevant, because Heller doesn’t necessarily include the right to own semiautomatic weapons as part of the individual right. In fact, Scalia points out that his reading of the amendment leaves room for gun control. So it would be possible for an assault ban to respect the individual right, as the individual right prescribes the right to own a gun, but not any gun. If people on the terror watch list weren’t allowed to have assault rifles, but were allowed to have handguns, for example, that might still meet the second amendment protections as set forth in Heller, and in my view would be a proper extent of constitutional interpretation for Congress: not explicitly going against the court’s word, but trying to describe more fully the limits of a right that the court has recognized in some embryonic form.

 

TW: You’re right that Winkler’s conditions moot the narrower legality question, but let’s talk about a non-Winkler world. I apologize for misstating your position and see what you mean re. the scope of Heller. Thank you for clarifying! I may write a post on that topic soon.

For now, I’ll quote one salient passage of the decision. It seems to me that, if its reasoning holds true for handguns, it should also hold true for AR-15s.

“The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster.[…]

It is no answer to say, as petitioners do, that it is per­missible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessen­tial self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emer­gency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upperbody strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”

 

FU: That’s very striking language, and it runs against the notion of an assault ban being a constitutional slam-dunk. According to that passage, it’s not a complete argument to say, “A ban on category X of guns is constitutional because people can still obtain guns from category Y.” But I still think the second amendment is compatible with an assault ban — and if it is compatible with such a ban in general, meaning that the second amendment doesn’t enshrine the right to own assault weapons, so it should be for a ban on assault weapons for people on the terror watch list.

Such a ban would have to rest on a meaningful distinction between handguns and assault weapons, in terms of the purpose and thus the content of the right delineated by the second amendment (The second amendment is somewhat unique in that it directly suggests a purpose behind the right it enshrines: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The logical connection between clauses takes up a lot of space in Scalia’s Heller opinion, and the conclusion he draws — that the necessity of a militia means people have a right to own personal firearms, even if, unlike in revolutionary America, a militia armed with personal firearms would stand no chance against a professional fighting force — is why I referred to Heller as resting on an originalist anachronism.).

In the passages you cite from Heller, Scalia rejects the category X/ category Y argument outlined above by saying: “It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon.” Scalia goes on to describe many reasons why handguns are Americans’ weapon of choice for self-defense. In doing so, he demonstrates that, for many Americans, handguns serve the legitimate purpose set forth in the second amendment. Heller thus stands for the proposition that guns serving the legitimate purpose of self-defense enjoy substantive protection under the second amendment.

Assault weapons do not meet the criteria that Scalia sets out. But he’s actually rather vague on whether and why Americans’ preference for handguns as self-defense weapons makes them protected under the second amendment. This would be a striking departure from the originalist interpretation that Scalia championed.

In any case, suffice to say that Heller rejects the category X/ category Y argument in cases where the guns in category X share traits that earn them substantive second-amendment protection. This line of logic doesn’t preclude future bans on categories of guns without substantive second-amendment protection, and it seems to me that assault rifles might be just such a category. The fact that the Supreme Court recently declined to hear multiple challenges to state assault bans supports this interpretation.

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