Analysis

Five members of the Supreme Court on Monday assured state, county and city officials not to worry: the new decision protecting a “right to keep and bear arms” against government action at any level — local, state or national — “does not imperil every law regulating firearms.” But the Court majority did not have any assurances for judges at every level, that they will be spared the duty of ruling on many forms of gun regulation that a legislature, county board, or city council has chosen to enact. And the Court gave those judges very little guidance, in its ruling in McDonald, et al., v. Chicago, on how they are to analyze those laws.

The Court did not even rule on the constitutionality of the one law that was at issue — a handgun ban in Chicago — nor did it tell the Seventh Circuit Court what constitutional standard to apply in judging that law when the case returns there. That particular law’s fate, like that of so many others around the nation, now must await a new round in court.

What the Court’s assurance aimed to do was to forecast that opponents of gun control will not win every time. But it had no authority to prevent many such battles from arising in the lower courts. It is fair to speculate that, after decades of frustration that the Second Amendment had not limited state and local power to pass gun laws, there is a pent-up demand to use it now that it is newly available as a high-powered legal weapon against such legislation. Judges, in short, are about to learn what legislators have long known: given the passionate support that exists for gun rights, virtually any attempt to curb them produces a pitched battle. The dueling of lobbyists will now be replicated by dueling attorneys.

Justice Samuel A. Alito, Jr., in the Court’s main opinion, did make one thing unmistakably clear to lower court judges: the right to have a gun for self-defense in the home is a “fundamental” constitutional right. That one-word label carries enormous import. Ordinarily, if a right is deemed to be fundamental, any law that seeks to limit it will be judged by the stiffest constitutional test there is: it must satisfy “strict scrutiny,” meaning that it will be struck down if the government’s need for it is not “compelling” and if the approach it takes is not the narrowest possible way to get at the problem. Some laws can survive “strict scrutiny,” but not a great many do.

Two years ago, when the Court struck down a flat ban on handguns that had been enacted in Washington, D.C., that was the first time it had found that the Second Amendment guaranteed a personal right to have a gun for self-defense in the home, enforceable against federal laws or those in the federal capital city (District of Columbia v. Heller). It nullified that law without saying that it was using a “strict scrutiny” test; indeed, it said that ban would fail using any constitutional test. So, the similar handgun ban adopted in Chicago (and in other cities, such as Toledo and Oak Park, Ill.), may well be doomed. But that may be the easiest kind of law for judges to nullify under the Amendment. Justice Alito remarked that there was “a paucity of precedent” in state courts, when viewing gun rights under state constitutions, for upholding such flat bans.

But where the new decision will be most significantly tested will be regulation, not prohibition, of gun possession or use. Without embracing everything that Justice Stephen G. Breyer wrote in one of Monday’s dissenting opinions (including his sweeping claim that the Court was sending lower courts off on a “mission-almost-impossible”), his opinion does come close to a fair description of some of the complications that will be featured in future lawsuits.

As Breyer noted, “countless gun regulations of many shapes and sizes are in place in every state and in many local communities.” He then catalogued some of the questions that will now arise as many of those laws are tested: “Does the right to possess weapons for self-defense extend outside the home? To the car? To work? What sort of guns are necessary for self-defense? Handguns? Rifles? Semi-automatic weapons? When is a gun semi-automatic? Where are different kinds of weapons likely needed? Does time-of-day matter? Does the presence of a child in the house matter? Does the presence of a convicted felon in the house matter? Do police need special rules permitting patdowns designed to find guns? When do registration requirements become severe to the point that they amount to an unconstiutional ban? Who can possess guns and of what kind? Aliens? Prior drug offenders? Prior alcohol abusers? How would the right interact with a state or local government’s ability to take special measures during, say, national security emergencies?…These are only a few uncertainties that quickly come to mind.”

Justice Alito’s opinion did repeat some of the limitations on gun rights that the Court had said, in its Heller decision, that it was not disturbing. The Court had said there, Alito noted, that the right it was newly protecting was not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” And Alito repeated, from the Heller opinion, the assurance that “our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill,’ ‘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.”

One of the first cases to test what McDonald means, when applied beyond a flat ban on handguns, is the case of Nordyke v. King, now on hold before the en banc Ninth Circuit Court (docket 07-15763), awaiting the Supreme Court’s new decision. In that case, officials in Alameda County, Calif., imposed a flat ban on bringing any guns onto any county property, which had the practical effect of banning gun shows at a county fairgrounds. A panel of the Ninth Circuit, while finding that the Second Amendment applied to state and local government, upheld the ban. That ruling was set aside when the en banc Court took on the case. Presumably, that battle will now resume, perhaps with new briefs. It could clarify what, for example, is a “sensitive place” from which guns may be excluded.

The new lawsuits likely to develop will come against the background of a new desire, among devotees of gun rights, to carry their firearms in public places. Gun owners held a large “piece rally” in Washington recently, and many guns were holstered for the occasion, to put new emphasis on the building resistance to gun-carry restrictions. A number of gun owners showed up last summer at “Tea Party” rallies, wearing their guns. Communities that interpret the McDonald decision as being limited to having guns in the home may conclude that they can ban guns anywhere outside the home. Any ordinances to that effect, though, are surely going to be tested. (And, as Justice John Paul Stevens noted in his dissent on Monday, there is a passing hint in the Heller decision of 2008 that maybe the personal right to a gun is not limited to having it at home. In that comment, the Heller opinion said the individual right it was declaring was “a right to possess and carry weapons in case of confrontation.” Lawsuits may be needed to clarify just what that right entails.)

Other laws almost certain to be tested are registration provisions. In fact, Dick Anthony Heller, the Washington, D.C., private security guard who won the Second Amendment case two years ago, is back in the D.C. Circuit Court, testing the gun registration law that the local City Council adopted after its flat ban had been nullified by the Supreme Court. A federal judge upheld the new ordinance, and Heller and other gun owners’ appeal is pending (Circuit Court docket 10-7036).

While the Heller decision was profoundly important, for finding in the Second Amendment an individual right to a gun, it is a fact that the vast number of laws that seek to regulate gun possession and use are those enacted at the state and local levels, not by Congress. Thus, a gun right that at its origin seemed fairly narrow has now been nationalized, though it remains surrounded in basic doubt about just what it actually means.







