On Wednesday, the Senate Judiciary Committee will hold a hearing on the various gun control proposals that have been floated in the wake of the Sandy Hook school shootings. Although they are said to be merely "reasonable regulations" of the Second Amendment's right to keep and bear arms, most or all of these proposals are irrational and unconstitutional.
The Supreme Court has established a two-tiered protection of liberty. Under the lowest tier, "rational basis review," it will uphold restrictions on liberty so long as it can imagine any possible reason why Congress might have adopted the measure. By contrast, if a liberty is deemed by the court to be a "fundamental right," it will subject restrictions of that right to "heightened scrutiny," meaning that it will skeptically examine the means Congress chose to achieve its ends. This close comparison of means to ends is intended to smoke out justifications that are really pretexts for efforts to improperly stigmatize or restrict the exercise of a fundamental right.
In 2008, the Supreme Court held that the right to keep and bear arms was a fundamental right. In DC v. Heller, the court did not specify the exact type of heightened scrutiny it would employ when legislation restricts gun rights, except to insist that it would be higher than "rational basis review," and that a complete ban on weapons "in common use" by the citizenry for self-defense and other lawful purposes -- such as handguns -- is unconstitutional under any type of heightened scrutiny.
So, when considering the constitutionality of bans on so-called military-style assault weapons, or restrictions on the capacity of magazines, senators should begin by asking whether the weapons being banned are in common use by civilians. When it comes to so-called assault weapons, like the AR-15, or 30-round magazines, the answer is clearly "yes." Millions of such weapons and magazines are in private hands.
That should settle the matter, but senators can go a step further and ask whether these or other measures are actually rational -- to articulate the end they are seeking to accomplish, then assesses whether the means adopted actually match up with the purported end. Would they actually have prevented a mass shooting or ameliorated real crimes?
This heightened "rationality review" could help ensure that the reason being articulated is the real reason for the law.
For example, "assault weapons" are a made-up category of weapons that is based solely on cosmetic features that make them look like the fully automatic weapons used by the military. Banning them leaves other rifles that are functionally identical in their lethality and rate of fire completely legal. Moreover, far more powerful hunting rifles are left untouched by the law, as are shotguns. This is simply irrational and therefore unconstitutional.
The same can be said for New York's law limiting handguns to seven rounds, while allowing both active and retired police officers to keep their handguns that hold up to 15 rounds. If retired cops need 15 rounds to effectively protect themselves and others, then so do other citizens. Arbitrarily discriminating among Americans in this way is irrational and unconstitutional.
In fact, heightened rationality review confirms what we independently know is going on. Within hours of Sandy Hook, gun control proponents were beating the drums for their long-desired measures, like background checks for private gun sales, that would not in any way have prevented that tragedy. But the exploitation of these deaths is not just morally offensive.
The measures now being rushed through Congress before emotions can subside are irrational and pretextual, which means they are also unconstitutional.