The Volokh Conspiracy

For many years, gun rights advocates have fought to persuade the Supreme Court that the Second Amendment guarantees an individual right to bear arms. That battle has now been won in Heller. Indeed, all nine justices (including the four dissenters) seem to agree that there is some individual right to bear arms that goes beyond a "collective right" protection for state militias.

However, the experience of the struggle for judicial protection of constitutional property rights suggests that recognition of the mere existence of a right isn't enough. If the scope of the right is defined narrowly by courts, recognition won't mean much in practice. The history of constitutional property rights is instructive in this regard.

I. Recognizing Property Rights Without Actually Protecting Them.

Unlike in the case of the Second Amendment right to bear arms, the Supreme Court has always recognized that the Fifth Amendment's Takings Clause and other property rights provisions in the Constitution protect individual rights. However, since the 1930s, the Court has defined the scope of these rights so narrowly that they get very little protection in practice. For example, the Court has always held - as it reaffirmed in Kelo v. City of New London - that property cannot be condemned unless the taking is for a "public use." Purely "private" takings are - and always have been - forbidden by the Court. However, the Court defines "public use" to include virtually any conceivable benefit to the public, even ones that might never actually materialize. As a result, the Court still lets government condemn virtually any property for virtually any reason. In theory, there is an individual right here; in practice, not so much.

Similarly, the Court has long recognized that some regulations of property that don't involve physical occupation of land by the government might might still be onerous enough to be considered "takings" requiring "just compensation" under the Fifth Amendment. However, in cases such as Lucas v. South Carolina Coastal Commission and Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, the Court decided that such regulations are only presumptively considered takings if they permanently wipe out 100% of the economic value of the property in question. If a regulation wipes out 98% of the value permanently, or %100 of the value for a period of twenty years, the property owner is probably out of luck. In practice, government officials can almost always draft regulations in such a way that their impact is not quite permanent and/or allows the owner to retain some tiny percentage of his land's value. Thus, property owners have little or no real protection against regulatory takings - despite the Supreme Court's recognition of an individual right.

II. Implications for Gun Rights.

It is easy to see how this point applies to gun rights. Although Justice Scalia's majority opinion in Heller firmly establishes the Court's recognition of an individual right to bear arms, it also lists a large number of "presumptively valid" firearms regulations, including "longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." The opinion also recognizes the validity of "the historical tradition of prohibiting the carrying of "'dangerous and unusual weapons.'" Many of these exceptions to the right to bear arms could potentially be used to swallow up the rule. Most obviously, "laws imposing conditions and qualifications on the commercial sale of arms" could easily be drafted in ways that make the purchase of firearms prohibitively difficult or expensive for most ordinary citizens. For example, Justice Scalia emphasizes that the right to bear arms is historically rooted in the right to self-defense. State and local governments could potentially enact laws requiring would-be gun purchasers to provide extensive and specific evidence that they really do need a firearm for self-defense before allowing them to purchase guns. Larry Solum notes that Scalia's opinion also might allow prohibitively burdensome registration requirements:

Because of a concession made in oral argument, the Court's Opinion in Heller did not address the [constitutionality of DC's] licensing and registration requirements. It seems likely that simple registration requirements will survive Heller, but one obvious countermove to Heller would be to establish burdensome registration and licensing procedures. Whether such provisions would survive Heller is uncertain. One can imagine lower court judges upholding very burdensome requirements, or striking them down. Heller surely implies that extremely burdensome registration or licensing procedures would be struck down, but one can imagine a level of burden that would in practice discourage gun ownership but that might survive post-Heller scrutiny.

As my colleague and prominent Second Amendment scholar Nelson Lund points out, several of Scalia's other exceptions might also be problematic:

Scalia’s opinion also includes dicta indicating that some important forms of gun control will be upheld. Examples include bans on carrying concealed weapons; disarmament of convicted felons; gun free zones in “sensitive places” like schools and government buildings; restrictions on the commercial sale of firearms; and bans on “dangerous and unusual” weapons, apparently including short-barreled shotguns and machine guns.

Some of the examples are problematic.

Is it truly consistent with the original meaning of the Second Amendment to leave an American citizen defenseless for the rest of her life because she was convicted of a non-violent felony like tax evasion or insider trading?

On what basis will courts decide whether particular places are sufficiently “sensitive” to justify disarming citizens who go there? Did New Orleans become a “sensitive” place after Hurricane Katrina, thus allowing the government to confiscate weapons from law abiding citizens whom the government did not and could not protect from roving bands of looters and criminals?

Did short-barreled shotguns, which are very useful for self-defense and in many cases superior to handguns, become “dangerous and unusual” just because Congress decided to restrict them in 1934?

Scalia himself may not intend these parts of his opinion to be interpreted so broadly. But what counts is not his personal intent but the interpretation placed on his language by lower court judges, and ultimately by swing voter justices in future Supreme Court cases clarifying Heller. The property rights experience suggests that it may be very difficult to convert judicial recognition of a constitutional right into meaningful protection for people in the real world.

Indeed, Justice Scalia's similarly ambiguous opinion in the crucial 1992 Lucas regulatory takings case has over time been rendered ineffective because swing vote justices interpreted it narrowly in the 2002 Tahoe-Sierra case (both briefly discussed above), which held that even a regulation that wipes out all the value of property for years is not presumptively considered a taking so long as it doesn't wipe it out permanently. Scalia voted with the dissenters in that case. But the court's decision turned on the views of swing voters Anthony Kennedy and Sandra Day O'Connor.

In sum, judicial recognition of a constitutional right is only the beginning of the struggle to provide genuinely effective protection for that right. It would be a big mistake to assume otherwise.