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In March 2007, a divided panel of the U.S. Circuit Court of Appeals for the District of Columbia struck down Washington’s 25-year-old prohibition of handgun ownership for most district residents and set in motion a constitutional showdown in the U.S. Supreme Court, where oral argument was held last month. The importance of this conflict goes beyond questions of federalism and gun control, because a decision in D.C. v. Heller may reveal the true colors of the court’s newest members. By late June we may know whether the Republican crusade to change the character of the court has produced a majority of pro-government cautionary conservatives or a new breed of rightward-leaning judicial activists. The key votes will belong to Anthony M. Kennedy (as usual), John G. Roberts Jr. and Samuel A. Alito Jr. But this time the activist claims come from red-state sensibilities and the local rifle association. The opinion by Judge Laurence Silberman was certainly radical enough � it produced three broad new layers of Second Amendment law that the high court must now scrutinize. First, the two-judge majority ruled that the amendment’s ambiguous language confers a right not on “the people” collectively, but on individual citizens to bear arms. Second was the totally new announcement that the amendment confers rights specifically to own and use handguns. Third was the holding that no state or municipality can prohibit the ownership of pistols and revolvers because citizens want these weapons for household self-defense. Only the first of these has so far generated much attention, but it is all three of Silberman’s new theories taken together that pose a real threat to state and local handgun-control laws. Even if the courts recognize a personal right to “bear arms,” governments could still regulate firearms in reasonable ways. The District of Columbia can prohibit possession of sawed-off shotguns and bazookas if it wishes. But what about the district’s power to regulate semiautomatic pistols? According to the D.C. Circuit opinion, there is a constitutional right to possess pistols and revolvers because some form of handgun was mentioned in the Militia Act of 1794. And while the opinion concedes that the single-shot flintlock bears little resemblance to the semiautomatic pistol of 2008, it claims that the constitutional test should be whether modern handguns are “lineal descendants” of 1794 muskets. Having thus invented a genealogical test, the court then wrongly applies it. Modern handguns are wholly different from colonial weapons for reasons any street policeman knows. The muskets and flintlocks of 1794 were large and cumbersome. The most frequently produced “handgun” of that era was the Kentucky flintlock, with a 10-inch barrel and an overall length of 15.5 inches. That means the militia weapon wasn’t a concealable one. In contrast, the modern Smith & Wesson has a 1.9-inch barrel and 6.3-inch total length because it was designed to be concealed on the person. The modern handgun’s concealability is why it is about six times as likely as a long gun to be used in a killing and about 90 times as likely as a long gun to be used in an urban robbery. Thus, even assuming the correctness of Silberman’s “lineal descendant” test, the opinion ignored the defining danger of modern handguns. Who needs handguns at home? The D.C. Circuit opinion conceded that it is reasonable for states and cities to prohibit the carrying of handguns, but argues that prohibiting ownership goes too far because citizens may want to defend themselves with handguns at home. This part of the opinion has puzzled both sides in the gun-control debate. Having approved of state laws that keep handguns off the street, why the special need to preserve the right to use them instead of long guns at home? The opinion doesn’t say, but only mentions that many citizens prefer handguns for self-defense. Yet the people who say this in public opinion polls may be thinking about the street use that Silberman still allows the government to prohibit. There is no evidence that pistols are better than shotguns in households. But is there evidence that cutting down on handgun ownership in big-city apartments and houses reduces the use of handguns in violence? Yes. When New York police finally got serious about removing handguns from the streets in the 1990s, the low number of handguns in the rest of the city is one reason whey gun deaths dropped by 80%. Removing street guns has limited impact if thousands of handguns are easy to replace from a large civilian inventory. New York’s residents may buy only rifles and shotguns, but they don’t seem to mind much. Maybe the citizens of Dallas and Miami disagree with reducing the population of concealable handguns in order to minimize gun deaths. But that’s why we have a federal system. States can choose handgun restrictions, as can cities. The invention of a categorical substantive right to handgun ownership in Heller would take away this freedom of state power and local control. The irony is that, when the young conservative lawyers banded together many years ago, they called themselves “The Federalist Society.” This spring we’ll find out if they were sincere. Franklin E. Zimring is professor of law at the University of California, Berkeley School of Law.

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