In the Wall Street Journal.Â Tribe is a well respected constitutional scholar, so this isn’t a minor deal.Â He’s come out in favor of an individual right in his book on constitutional law, so this is somewhat of a surprise. Heller’s attorneys seem to be a bit surprised too.Â Tribe says:
But nothing I have discovered or written supports an absolute right to possess the weapons of one’s choice. The lower court’s decision in this case — the D.C. Circuit Court of Appeals found the District’s ban on concealable handguns in a densely populated area to be unconstitutional — went overboard. Under any plausible standard of review, a legislature’s choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms.
So we can interpret other liberties in the Bill of Rights to apply depending on geography and population density?Â Drugs are a scourge of the inner cities as well.Â Would Professor Tribe support standard of review for the fourth amendment which would allow house to house searches for drugs in urban areas, while leaving the fourth amendment well enough in tact in rural areas?Â I think most of us here would agree the fourth amendment is already subject to too lienent a standard of review.Â I see no reason to do the same to the second.
Worse than that, it would transform a constitutional provision clearly intended and designed to protect the people of the several states from an all-powerful national government into a restriction on the national government’s uniquely powerful role as governor of the nation’s capital, over which Congress, acting through municipal authorities of the District, exercises the same kind of plenary authority that it exercises over Fort Knox.
Fort Knox is a military installation.Â Is Professor Tribe attempting to argue that it would be appropriate to apply martial law over The District? I would hope not.
UPDATE: Dave Kopel has more.