Right-Wing Media Take Turns Repeating Debunked Talking Points About "Unconstitutional" Gun Violence Prevention
Blog ››› ››› SERGIO MUNOZ
Right-wing media have been looking to anyone for talking points about the purported "unconstitutionality" of gun violence prevention. Frequent Wall Street Journal contributor David Rivkin Jr. recently took his turn in an op-ed, and his junior associate repeated the argument on a NRA news show. But Supreme Court precedent does not support their confused generalizations and multiple legal experts have explained how current proposals are constitutional under District of Columbia v. Heller.
Former Reagan and Bush I White House official Rivkin now publishes regular attacks on the Obama Administration in the editorial pages of The Wall Street Journal. Frequently debunked, even by other conservative media, his claims of President Obama's "lawlessness" now extend to the gun violence prevention measures under consideration in response to the Sandy Hook massacre.
In a recent WSJ op-ed with colleague Andrew Grossman, Rivkin called these attempts to prevent future violence uninformed and claimed: "what government cannot do is deny the individual interest in self-defense. As a legal matter, that debate is settled. The president and his allies seem to have missed the message[.]" Grossman then appeared on the NRA's televised news show, Cam & Company, to defend this misinformation about the Supreme Court's decision in Heller and misrepresent case law on exceptions to fundamental rights. On the show, Grossman claimed a renewed assault weapons ban and capacity limits for magazines were not permitted by Heller:
ANDREW GROSSMAN: If a weapon is in common usage for lawful purposes, looking at the text and the history of the [Second A]mendment, that's the end of the debate. That's your constitutional question right there. And if you look at the numbers in this case, you've got a lot of these firearms in lawful hands being used for perfectly reasonable purposes. Indeed, as you pointed out, very rarely used in crimes. The president's proposal here with respect to these assault weapons, it just doesn't make any sense, no matter how you sort of look at the constitutional test, that's the way it comes out. There's no standard of scrutiny that you can apply under which this would survive.
The problem that you've got here is you have you a political class that is very unaccustomed to firearms. They didn't grow up around them. In some instances, they are terrified of them. Perfectly irrational, perfectly unreasonable. But that's the way their views are. That's how they formed their views. As a legal matter, that's not a ground on which to deny an individual American and American citizens fundamental rights. If you're not used to a certain type of speech, if the government is not used to a certain type of speech, it can't ban that speech just because it disagrees with it or it doesn't like it.
The circular - and inaccurate - argument that illegal gun violence prevention proposals are seeking to illegally remove firearms "in use for lawful purposes" from "lawful hands" is a red herring. When pressed, right-wing media admit they have no super-secret evidence that the Obama administration and Congress are conspiring to prohibit what they cannot under the Second Amendment. Indeed, conservative Justice Antonin Scalia made quite clear in Heller that there is no need for such imagined malfeasance. The Second Amendment has always had legal exceptions to the fundamental individual right to firearms for self-defense, and Heller reaffirmed that sensible regulations on gun ownership remain constitutional. Harvard Law School Professor of Constitutional Law Laurence H. Tribe explained this threshold point in his testimony for Congress:
Most constitutional challenges require lawyers and scholars to carry out two stages of analysis. First, we must assess whether a given government policy even implicates a given right in the first place.
I begin with this return to fundamentals because it never ceases to surprise me how often those engaged in legal debate talk past one another by conflating these distinct steps. In the Second Amendment context particularly, there is no excuse for making that mistake. For Heller itself makes it absolutely plain that not every gun regulation even triggers Second Amendment review. In other words, sometimes governments may enact regulations addressing the manufacture, transfer, possession or use of firearms that categorically fall outside the Second Amendment's scope, freeing governments of any burden even to make detailed defenses of the provisions in question.
Similar to other fundamental rights (e.g., the First Amendment or the Fourth Amendment), the Second Amendment is not "unlimited." Many exceptions that do not infringe on the "core lawful purpose of self-defense" are regulated, and even banned. In the past, conservatives recognized this: Reagan supported the 1994 assault weapons ban whose renewal is currently being debated, and Bush I enacted a partial assault weapons ban of his own. In Heller, Justice Scalia explicitly recognized that assault weapons similar to the military's M-16 rifle - a derivative of the assault weapon used in the Newtown killings - clearly fall in established Second Amendment exceptions, as do other "conditions and qualifications on the commercial sale of arms."
In anticipation of Congressional hearings on gun violence, 50 leading constitutional scholars and law professors published a letter re-explaining the constitutionality of prevention measures currently under discussion. The letter represents a detailed rebuttal of Rivkin and Grossman's rhetoric and is a useful resource for the next time right-wing media recycle misinformation about the "unconstitutionality" of gun violence prevention:
Justice Scalia recognized in Heller that, like other constitutional rights, the Second Amendment is not an absolute. The First Amendment, for example, provides that "Congress shall make no law . . . abridging the freedom of speech," but the Supreme Court has long and consistently held that some types of speech - for example, defamation, obscenity and threats - can be regulated; that some people - for example, public employees, members of the military, students and prisoners - are subject to greater restrictions on their speech than others; and that the government can reasonably regulate the time, place and manner of speech. As Justice Scalia explained in Heller, the rights guaranteed by the Second Amendment are likewise subject to appropriate regulation in order to enhance public safety.
In acknowledging the presumptive constitutionality of laws designed to prevent gun violence, including restrictions on who has access to firearms and what types of firearms they may have, Heller is consistent with the history of the right to keep and bear arms.
Restrictions on the manufacture and sale of high-capacity ammunition magazines and assault weapons are  consistent with the Second Amendment. In a recent opinion authored by Judge Douglas Ginsburg and joined by Judge Karen Henderson, the U.S. Court of Appeals for the District of Columbia Circuit held that such regulations are consistent with the Second Amendment and with the Supreme Court's decision in Heller. The court of appeals recognized such weapons and magazines are not necessary for individual self-defense--what Heller called the "core lawful purpose" of the Second Amendment. Restrictions on high-capacity magazines and assault weapons, the court of appeals held, do "not effectively disarm individuals or substantially affect their ability to defend themselves." The Second Amendment, like the First Amendment, does not prevent lawmakers from enacting reasonable regulations that do not seriously interfere with the core right guaranteed by the Constitution.