Legal Commentary

District Court Upholds D.C. Registration Requirement, ?Assault Weapon? Ban, Ban on Large-Capacity Magazines

By Eugene Volokh

The opinion is here (Heller v. D.C.); thanks to Josh Blackman?s blog for the pointer. I hope to post a few thoughts on this soon. In the meantime, my short summary:

1. The court reached the right answer on the constitutional question, at least insofar as we?re talking about the right to keep and bear arms in self-defense, for reasons I discuss in my Implementing the Right to Keep and Bear Arms for Self-Defense piece. (I don?t know about the right to keep and bear arms for other purposes, if such a right is indeed recognized under Heller; I leave that question for others.)

2. But the analytical structure, I think, is mistaken. In particular, the decision to apply so-called ?intermediate scrutiny? to gun restrictions generally was mistaken, for reasons mentioned in Part I.C.2.a-c of my article.

3. Likewise, the decision that bans on ?assault weapons? and large-capacity magazines are per se valid because those devices are not usually used for lawful purposes strikes me as pretty weak, too. The better defense for those restrictions is just that the restrictions do not substantially burden the right to keep and bear arms for self-defense.

Full post as published by The Volokh Conspiracy on March 26, 2010 (boomark / email).