Government Has Right to Ban Some Weapons, Says Duke Constitutional Law Expert

Tuesday, November 20, 2007

Durham, NC -- On Tuesday, the Supreme Court said it will hear a case that will decide whether the District of Columbia can ban handguns.

“The Court should rule that the government can regulate firearms, consistent with the Second Amendment, so long as it acts reasonably,” says Erwin Chemerinsky, a constitutional law expert at Duke University. “This is the standard used in assessing the constitutionality of other government regulation of business.

“Under this approach, laws like the District of Columbia’s gun ban can be upheld, even if the Court finds an individual right to own guns in the Second Amendment.”

Chemerinsky, the Alston & Bird Professor of Law and Political Science at Duke, said few issues more divide liberals and conservatives in this country than the meaning of the Second Amendment and whether it gives individuals a right to own guns.

“Liberals point to the first words of the Second Amendment which they see as stating its purpose: ‘A well regulated militia, being necessary to the security of a free State.’ Their view is that this simply means that Congress cannot regulate firearms in a way that keeps states from protecting themselves.

“Conservatives point to the last clause of the Amendment, which states ‘the right of the People to keep and bear arms, shall not be infringed.’ The federal courts of appeals are divided over this issue and it is expected that the Supreme Court will choose between these two views.

“But the Supreme Court does not need to do so. It could simply say that even if the Second Amendment does create an individual right to have guns, it is not absolute.”