“Reasonable regulation” and McDonald

The following exchange took place during James Feldman’s oral argument today, on behalf of the Chicago government, in McDonald v. Chicago:

JUSTICE SOTOMAYOR: Would you be happy if we incorporated it and said, reasonable regulation is part of the incorporation? And how do we do that?

MR. FELDMAN: Well, there is the reasonable regulation standard, there is an article by Professor Winkler that we cite in our brief that goes very extensively through the ways that State courts have dealt with their own rights to keep and bear arms and have adopted, really by overwhelming consensus, that kind of a reasonable regulation standard, which generally recognizes

JUSTICE GINSBURG: I thought that HellerHeller allowed for reasonable regulation.

MR. FELDMAN: Excuse me.

JUSTICE GINSBURG: I thought that the Heller decision allowed for reasonable regulation and it gave a few examples as Justice Scalia mentioned.

MR. FELDMAN: Right. Well, it’s just our view would be that what Chicago has done here, which is permit you to have a — permit you to have long guns but ban handguns, is the kind of regulation that throughout our history jurisdictions in their own — that are most familiar with their own particular needs and their own particular problems, and in a position to balance the -the need for self-defense with the risk to the use of firearms — for violence, for accidental death and or suicide — that the City of Chicago has come up with something that is well within our tradition.

Some clarification here. Heller never adopted a “reasonable regulation” standard.  Heller allows for machine gun bans under theory that they are not part of the Second Amendment (that is, they are not Second Amendment “arms”). Restrictions on gun carrying in “sensitive places” are not explained doctrinally, but they are easily comparable to First Amendment “time, place, and manner” rules. Heller says that concealed carry may be banned; in the states, the dominant theory for this restriction was that concealed carry was not part of the right. Finally, Heller‘s allowance for conditions and qualifications on the commercial sale of guns was expressed without being described as part of some kind of “reasonableness” test.

Feldman was astute to cite Winkler’s Michigan Law Review article, since that article argued that state RKBA cases use a “reasonableness” standard, which Winkler  interprets as meaning that almost any anti-gun laws (including a handgun ban) are alright, as long as people are allowed to own some type of firearm.

In a forthcoming Santa Clara Law Review article, Clayton Cramerand I argue that Winkler overstates the degree of state judicial deference to anti-gun laws; we also argue that the weak standard of review cases are plainly invalid as Second Amendment guides post-Heller–since the D.C. ban itself would have been upheld under the standard Winkler describes (and for which he advocated in a Heller amicus brief along with Erwin Chemerinsky).

In McDonald, BTW, Winkler joined the all-star professors team whose amicus brief advocated for Privileges or Immunities enforcement of the right to arms.

Regarding today’s oral argument, I thought that all three attorneys did a good job arguing on behalf of their respective positions. As it turned out, only Paul Clement found a majority of the Court favorable to his core argument, but that’s no strike against the skills of Gura or Feldman as Supreme Court advocates.