The Supreme Court has now incorporated the Second Amendment against the states. But the impact of that decision may turn out to be fairly limited. In most states, there will be little if any change in the actual extent of gun regulation. The ideologically divided nature of the Court’s decision suggests that the legal status of the Second Amendment isn’t yet completely secure. That said, the decision will have a substantial practical impact in a few areas and it also represents a tremendous symbolic victory for gun rights advocates.
I. Limited Practical Impact.
On balance, I agree with scholars such as co-blogger Eugene Volokh and Jack Balkin who argue that McDonald will have only a limited practical effect. As Balkin puts it:
Complete bans on the use of handguns in the home for self-defense are likely to be held unconstitutional, as the Heller case suggested. But a wide range of other firearms regulations should be perfectly legal. The Supreme Court signaled as much in Heller and once again in McDonald.
The big difference between applying a constitutional right only against the federal government and applying it against state and local governments is that there are many more state and local regulations of firearms than federal regulations, and these regulations occur in many different varieties.
This increases the number of possible constitutional claims, and it also increases the opportunities for litigation. It does not, however, guarantee that Second Amendment rights will become too robust over time…
Federal courts tend to strike down mostly laws in outlier jurisdictions that are markedly different from the norm. That is what happened in the District of Columbia, and will likely happen in Chicago. More than 40 states already recognize an individual right to bear arms under their own constitutions. By and large, they have upheld most gun control laws under a loose standard of reasonableness. The federal courts will probably follow suit.
As I explained in this 2008 Legal Times article on Heller, Justice Scalia’s majority opinion in that case leaves numerous openings even for very broad gun control regulations:
Justice Antonin Scalia’s majority opinion in Heller firmly establishes the Court’s recognition of an individual right to bear arms. Yet it also outlines a large number of “presumptively lawful regulatory measures” restricting gun rights. These exceptions to the right to bear arms could potentially swallow the rule.
Most importantly, the presumptively valid “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. The exception for “prohibitions on the possession of firearms by felons and the mentally ill” could also be used to undermine the scope of Heller. Many states, as well as the federal government, define a wide variety of minor, nonviolent offenses as felonies.
The Scalia opinion seems to accept laws forbidding the carrying of firearms in “sensitive” locations such as schools
and government buildings. A government might define a large number of areas as “sensitive,” including, for example, entire neighborhoods with high crime rates….Governments could also act to limit gun ownership by imposing prohibitively burdensome requirements on gun registration, a type of regulation not considered in Heller. In short, Heller potentially leaves a lot of room for legislators and lower courts to eviscerate the individual Second Amendment right that the Supreme Court has recognized.
McDonald does nothing to clarify or pare back this language from Heller. Presumably, therefore, Heller’s strictures on the limits of gun rights remain intact and will apply to state as well as federal regulation.
As Balkin points out, only a few areas have truly draconian gun bans similar to Chicago’s, so the impact of McDonald may well be confined to a small number of atypical locations. That said, it is important that complete gun bans such as Chicago’s are on their way out. Millions of people live in Chicago and a few other similar jurisdictions.
I think it’s also likely that courts will turn a skeptical eye on regulations that allow gun possession in theory but essentially ban it in practice (as the new post-Heller DC regulations do). The fate of such subterfuges is likely to be the most significant issue lower courts will have to consider in the short-term aftermath of McDonald.
II. The Impact of Ideological Division.
Both Heller and McDonald were closely divided 5-4 decisions where the Court split along ideological lines. In Heller, the four liberal justices indicated that they do not believe that the Second Amendment protects an individual right robust enough to invalidate even the most extreme forms of gun control. As I see it, it’s even more telling that in McDonald they argued that the Second Amendment should not restrict the states in any significant way even if Heller were correct as to the federal government.
As I argued in this article on the status of property rights, it is difficult to achieve strong protection for constitutional rights if such protection is supported by judges on only one side of the political spectrum. Where that is the case, protection of those rights will rest on narrow majorities that could easily be changed. Moreover, lower court judges belonging to the opposite party are likely to interpret Supreme Court decisions defining the right as narrowly as they can. In this case, if even one pro-Heller/McDonald justice is replaced by a liberal, both decisions could well be overruled or interpreted so narrowly as to be effectively meaningless.
The ideological division on the Court need not be permanent. Outside the judiciary, leading liberal constitutional law scholars such as Akhil Amar, Jack Balkin, and Sandy Levinson have defended the idea that the Second Amendment protects an important individual right enforceable against all levels of government. It’s possible that the next generation of liberal judges will be influenced by such views.
III. Could Heller and McDonald Actually Lead to More Gun Control Regulation?
Assuming Heller and McDonald survive, it’s possible that they might actually increase the amount of gun control regulation in the long run. As Eugene Volokh points out:
[S]ubstantive constitutional limits on government power can be regulation-enabling, not just regulation-frustrating. A non-absolute constitutional right to get an abortion, to speak, or to own guns can free people to vote for small burdens on the right with less concern that these small steps will lead to broader constraints.
Some of those who oppose relatively moderate gun control regulations do so out of fear that they will lead to much broader ones. If Heller and McDonald take that possibility off the table, yet do not ban moderate gun control measures themselves, the net result could be an increase in political support for the latter. I emphasize, however, that this is only a possible outcome. Many other factors will influence the future politics of gun control.
porterhouse says:
The liberal academics that support Heller are misguided and shortsighted. Heller needs to be overruled and replaced with an expansion of the right to self-defense that emanates from the right to privacy.
Americans believe they have a right to self-defense and they value the tradition of gun ownership; however, Scalia’s interpretation of the 2nd Amendment in Heller was intellectually dishonest–it was also a brilliant move coordinated by many right-wing legal thinkers to strengthen “strict constructionism” while creating a new right with no foundation in the Bill of Rights. The liberals missed a golden opportunity to strengthen the right to privacy and associate it with a right the vast majority of Americans already believed they had even before Heller was decided.
June 28, 2010, 7:24 pmKenneth C. Brooks says:
The real reason Dailey doesn’t want guns in Chicago. http://www.suntimes.com/news/24-7/2441284,burge-verdict-062810.article
June 28, 2010, 7:33 pmHow was it Justice Breyer put it, yeah it might interfere with law enforcement. Well maybe some of that law enforcement needs to get interefered with, at least in the case of Chicago Police Chief Jon Burge for which one juror voted to convict for perjury for lying under oath about the torture of suspects at Area 2 police headquarters.
Matt says:
Unfortunately the courts will probably do as Justice Stevens said “procee[d] slowly and incrementally,”–
The question is, when they do, will they actually “submit their opinions in longhand?” (To quote Justice Scalia- for those that haven’t had time to read all 214 pages yet!)
Is it just me, or did Justice Scalia deliver a “parting slap” to Justice Stevens on his way out– I don’t usually laugh while reading court opinions, but I did reading Justice Scalia’s
June 28, 2010, 7:45 pmcityduck says:
This decision is a boon for Democrats.
First, the fear that the feds, states or localities will ban guns is now gone. Republicans can’t run on the tired old “Democrats want to take your guns” rhetoric, especially in the all important Western United States where gun control is not a real issue.
Second, most gun owners understand the need for reasonable regulation of guns. The fact that the Supreme Court and the Courts are now available to provide guidance on where the line for reasonable regulation should be drawn will create more societal acceptance for reasonable gun restrictions as the Courts legitimize those restrictions just as it has led to societal acceptance for reasonable speech restrictions. The public understands that no rights are absolute, and the availability of judicial review will defeat concerns over slippery slopes. The ultimate outcome will be more bi-partisan support for reasonable gun laws, further removing gun rights as an issue that will be relied upon by Republicans.
Third, Democratic candidates will no longer feel the need to placate certain constituencies by supporting gun bans. They now are provided cover because that is no longer a legislative issue.
I suspect that the power of the NRA will steadily decline.
June 28, 2010, 8:02 pmAlbertE. says:
Mayor Delay of Chi is going to put all sorts of obstacles in the path of prospective handgun owners. You wait and see!
First you must pass a weapons safety course.
Then you must a qualification course for marksmanship. And PASS too of course.
Then you must have a certified lock placed on the trigger and trigger guard. With a certified authority certifying that it is a certified lock.
Then a reg that says the weapon must be kept unloaded unless you use in self-defense, and then the ammo must be kept in a spot a certain distance from where the weapon is stored. Weapon and ammo both in a locked box with a certified lock on the box [in addition to the lock on the weapon itself]. A lock on each box that is certified as being certified by a certified authority.
And a department to check all this out. With extraordinary but of course necessary powers to demand to see your “set-up” at any time.
And registration by certified authority with special tax to pay for the certified authority.
Mayor Delay has it all figured out.
June 28, 2010, 8:04 pmThe River Temoc, In Winter says:
Third, Democratic candidates will no longer feel the need to placate certain constituencies by supporting gun bans. They now are provided cover because that is no longer a legislative issue.
Well, the Republicans still feel the need to pay lip service to the religious right on abortion, notwithstanding Roe v. Wade.
Now, I do agree that some moderate GOPers may continue to support the GOP despite their dislike of the social conservatives, simply because they know that Roe will trump most of the anti-abortion legislation put forward. But ironically, that may make the social conservatives even more shrill — they know that they can be, and, if they stay within some limits, won’t lose the moderates’ support.
So I expect that the left wing of the Democratic party will continue to holler about guns, but that moderates can now safely ignore them. Probably a net plus for the Democrats, but it takes some game-theoretic thinking to get there.
June 28, 2010, 8:19 pmepluribus says:
You’re right, AlbertE., Mayor Daley has it all figured out. I know he is going to curtail my God-given right to pack heat. How exactly he will do that, since I live in Arizona, I’m not sure. But he will find a way.
June 28, 2010, 8:23 pmporterhouse says:
I am just finishing up Stevens’ dissent and it is actually making me rethink what I stated on the other thread. I think Stevens’ knows he made a mistake in Heller with his strict constructionist view of the 2nd Amendment, and around page 151 he does an outstanding job of making the case for what is essentially a right to self-defense in the home emanating from the right to privacy. If only liberal academic scholars had worked as hard on this issue and exhibited the great vision of scholars like Eugene Volokh–Stevens may have had something to hang his hat on in Heller. Liberal scholars failed Stevens and Volokh is to be congratulated.
On page 163 Stevens correctly asserts the amendment is a “federalism provision” and even cites Elk Grove…which I have cited numerous times in the comments of this blog and I do not believe it was cited in Heller.
I retract my comments about Justice Stevens’ dissent and I salute Justice Stevens…I was wrong to call him a partisan hack…it is liberal academia that failed Stevens. Stevens has been a great justice and we all make mistakes. I hope Stevens will continue to play a role on the district courts as the great Justice O’Connor has.
I am still researching all of this so I will post more comments soon.
June 28, 2010, 8:26 pmepluribus says:
Matt says:
Don’t you just hate it when the courts proceed slowly and incrementally? How can you really call a court “activist” when it proceeds slowly and incrementally? That is a sly (but transparent) tactic for evading the “activist” label, which all right-thinking people apply to court decisions they don’t like.
June 28, 2010, 8:31 pmreality check says:
The next step in this logical extension of Heller is the abolition of the “Jim Crow” gun laws enacted by DC, et al, as subterfuge for disenfrancising law-abiding citizens from thier individual right to bear arms.
I can’t wait.
June 28, 2010, 8:33 pmDavidicus says:
It’s interesting to watch the MSM fret about this decision, apparently unaware that in 40 states there are already permissive laws allowing people to carry loaded handguns in public as opposed to just having a handgun in their home.
http://www.nightchicken.com/2010/06/john-lott-has-a-good-piece-up-regarding-the-supreme-courts-historic-decision-on-incorporation-of-the.html
.
June 28, 2010, 8:34 pmepluribus says:
The ability to change one’s mind every twenty minutes or so is a talent rarely evidenced by the truly great thinkers of our time. Please, don’t be slow and incremental with your revelations.
June 28, 2010, 8:37 pmJones' Cell Mate says:
First, the fear that the feds, states or localities will ban guns is now gone. Republicans can’t run on the tired old “Democrats want to take your guns” rhetoric, especially in the all important Western United States where gun control is not a real issue.
A 5-4 decision makes that concern even more apparent. Particularly with respect to any federal office holder. Your next vote for Senator or President may go a long way in deciding whether or not the Second Amendment actually exists. I have trouble seeing that as good for Democrats.
More importantly, given that the Democratic appointed justices did actually want to “take your guns away” I see this as a major setback for the party that was encroaching a reasonable attitude towards the 2A. Now, they’re back to being reasonably labeled as “banners.”
The
June 28, 2010, 8:47 pmPJH says:
New York State’s (and NYC’s)handgun laws should prove interesting cases. There one can’t possess a handgun anywhere without a license to carry a concealed pistol. Not even in one’s home. And getting that license is typically very burdensome; e.g., interview by supreme court judge or her confidential law clerk, interview by police detective, interview of your references by police detective, 6-plus month wait, etc.
June 28, 2010, 8:48 pmPersonFromPorlock says:
If DC’s current restrictions are constitutional under Heller, that’s far enough down the slippery slope to trouble anyone who feared an absolute prohibition.
June 28, 2010, 8:50 pmMatthew Carberry says:
I am probably misunderstanding the nature of strict and intermediate scrutiny but don’t they put the burden on the restrictor to prove (at least demonstrate with facts not anecdote or emotional conjecture) that their restrictions are necessary to achieve the “compelling gov’t interest”?
If so, then doesn’t the objective fact that most states don’t have any sort of registration, don’t require any sort of permit to purchase or merely possess, don’t require any sort of permit to carry openly and have varying degrees of non-restrictive concealed carry sort of put the lie to any claim by the FOID and may-issue states (whose crime and safety rates are the same or worse than the former) that their regulations are in any way “reasonable” or even orthagonally related to any “compelling gov’t interest” in crime reduction and/or public safety?
I thought the whole point of having 50 laboratories of democracy was to find out what laws (or lack thereof) work best.
If that is truly the case an intellectually honest court, in any circuit, can hardly accept an argument that anything but the loosest restrictions available in any of their componant states are prima facia “reasonable” and thus acceptable.
June 28, 2010, 8:51 pmKharn says:
Luckily Heller stated that the weapon must be available for immediate self defense, so the unloaded-and-stored-apart shennanigans will be declared unconstitutional.
June 28, 2010, 8:58 pmORID says:
How about we just amend the Constitution to make the right to keep and bear arms an individual right?
Oh wait, don’t want to put the NRA out of business I suppose…
June 28, 2010, 9:02 pmnewrouter says:
so suspend the chicago law for 5 years and see what happens.
June 28, 2010, 9:02 pmMatthew Carberry says:
We did that already, it’s cleverly entitled “Amendment 2″.
June 28, 2010, 9:05 pmBrett Bellmore says:
No, now they’ll run on the newly reinforced “Democrats will put judges on the bench who’d authorize taking your guns away” rhetoric. Which has the advantage of being demonstrably true.
June 28, 2010, 9:21 pmMatthew Carberry says:
Can’t we just go on the evidence of, say 40-odd states over 30+ years?
Chicago is hardly a beacon of safety compared to the majority of the US that allow carry without severe restrictions; or even the rest of its own home state.
They aren’t that unique, they’re just a large urban area, not a precious snowflake.
June 28, 2010, 9:24 pmRKV says:
“[M]ost gun owners understand the need for reasonable regulation of guns.” Not really. Most of us like the “shall not be infringed” part. We’re pretty sick of some parts of the Bill of Rights being favored and other parts ignored. All the Constitution. All the time. Including the 10th Amendment and a Commerce Clause that actually has some boundaries. Thank you.
June 28, 2010, 9:37 pmLou Gots says:
I cannot concur with the notion that McDonald makes those “common sense” “reasonable first steps” easier to get through. On the contrary, just look at the hissy-fit the gun grabbers are having at this moment. McDonlald is going to provoke the other side just as it inspires the gun-right team to press its offensive at the state and local level.
The media are making out that places like Chicago are what matters in the gun rights debate. Not at all.
Those places are already lost. The hearts and minds
in play are in the suburbs and beyond. To see how that test is shaping up, look at the right-to-carry revolution which has been sweeping the country, as well as the gun- and ammunition-buying bonanza which only now is evening out.
Everyone saw Congress on its knees to the NRA over the DISCLOSE bill, this legal victory serves to bolster, if that were possible, the RKBA’s considerable momentum.
June 28, 2010, 9:39 pmJohnEMack says:
McDonald makes it clear that the right to bear arms is a fundamental right. Under American Crystal Sugar, doesn’t it mean that laws and ordinances limiting that right are subject to strict scrutiny?
June 28, 2010, 9:48 pmomar bradley says:
I just want to know how Justice Breyer sleeps at night? Did anyone read his dissent? How he can say what he did today and still support Roe and Casey is beyond me.
All the reasons he gave for why having a gun isn’t a fundamental right can be applied with much more confidence to abortion.
I mean he actually says that it shouldn’t be incorporated because there’s no popular consensus and there is wide disagreement on the issue. Funny, that disagreement and lack of consensus doesn’t seem to matter to him when it comes to incorporating the right to abortion.
He goes on to talk about federalism and states’ rights, saying this will encroach on that. I guess federalism doesn’t matter to him when it comes to abortion. He actually cites that states have the police power to protect lives ans a reason why it shouldn’t be incorporated. He doesn’t give a fig about protecting lives in another context.
And he further says that legislatures are better equipped than Judges to deal with tough issues. I almost fell out of my chair when I saw that.
Here’s his conclusion, slightly altered:
In sum, the Framers did not write the [14th] Amendment in order to protect a private right of [abortion]. There has been, and is, no consensus that the right is, or was, “fundamental.” No broader constitutional interest or principle supports legal treatment of that right as fundamental. To the contrary, broader constitutional concerns of an institutional nature argue strongly against that treatment.
Moreover, nothing in 18th-, 19th-, 20th-, or 21st-century history shows a consensus that the right to [abortion], as described in [Roe/Casey] , is “deeply rooted in this Nation’s history or tradition” or is otherwise “fundamental.” Indeed, incorporating the right recognized in [Roe] may change the law in many of the 50 States. Read in the majority’s favor, the historical evidence is at most ambiguous. And, in the absence of any other support for its conclusion, ambiguous history cannot show that the Fourteenth Amendment incorporates a private right of [abortion] against the States.
There’s now ay Breyer can justify his support for Roe and Casey after writing this opinion. None whatsoever. He’s forfeited any pretense to intellectual and judicial honesty and integrity.
June 28, 2010, 9:50 pmomar bradley says:
To be bipartisan, though, I also lost a bit of respect for Scalia with his weak defense of substantive due process. He’s criticized it numerous times over the years and in many opinions. Now, in this case, he simply says he has acquiesced to it in certain cases. What a weak defense!
June 28, 2010, 9:55 pmMatthew Carberry says:
Hell, many of the states have as good or better RKBA protections in their own Constitutions; this changes nothing for most of them.
If the Feds didn’t have illogical and purely emotionally derived definitions of “sensitive places” (which exceed most state’s own definitions of which I’m aware) the entire carry controversy would have been more or less over in 40 plus states by now.
If a person is lawful to possess a firearm, even at 18, they should be legal to carry it. If the general public can enter a public place, including public areas of government offices/buildings, in the normal course of business without going through a metal detector or locked door (the real definer of “sensitive”), they should be able to enter armed (note that “employee’s only” and actual secured areas are still off limits). If they are legal to drive BAC or other impairment-wise they should be legal to carry.
Those few guidelines, which may sound “extreme”, are in fact long-standing existing regs in several (and/or many) states right this moment with no evidence that more restrictive states are any safer or more crime free. There is no logical or statistically documentable reason why such reasonable limits shouldn’t be the law of the land on the Federal side as well.
June 28, 2010, 10:06 pmomar bradley says:
That said, I think if such a deal were proposed, most conservatives(and Justices Scalia and Thomas)would gladly reverse Heller and McDonald tomorrow and go back to how things were up until 2008 with regards to guns in exchange for reversing Roe and Casey.
I think Thomas is a fairly consistent federalist. He’s the most intellectually honest one on the Court.
I also loved how Thomas slammed the New York Times in his opinion:
12 In a separate front-page article on the same day, the paper expounded upon Hale’s arguments in even further detail, while omitting Bingham’s chief rebuttals. N. Y. Times, Feb. 28, 1866, p. 1. The unbalanced nature of The New York Times’ coverage is unsurprising. As scholars have noted, “[m]ost papers” during the time of Reconstruction “had a frank partisan slant . . . and the Times was no exception.” Wildenthal 1559. In 1866, the paper “was still defending” President Johnson’s resistance to Republican reform measures, as exemplified by the fact that it “supported Johnson’s veto of the Civil Rights Act of 1866.” Ibid.
Breyer’s opinion was simply astounding. That he could actually say such things with a straight face.
June 28, 2010, 10:09 pmCareless says:
“Outside the judiciary, leading liberal constitutional law scholars such as Akhil Amar, Jack Balkin, and Sandy Levinson have defended the idea that the Second Amendment protects an important individual right enforceable against all levels of government. It’s possible that the next generation of liberal judges will be influenced by such views.”
If the Democrats don’t nominate them now, why do you think they would nominate them in the future? They didn’t pick four justices who think that the 2nd Amendment doesn’t protect any right and shouldn’t be incorporated by accident.
Except it seems almost certain the courts will rule that most gun bans/restrictions are allowable.
June 28, 2010, 11:05 pmM-K says:
No time to read the comments right now, so if I’m repeating something someone else has already suggested, I apologize.
Have any of the lawyers here considered doing a preemptive Miller? Find a cooperative small town in the Fifth Circuit, have it pass onerous registration, licensing, carry laws, then use a cooperative plaintiff to bring suit in a probably favorable venue where the laws are likely to be summarily overthrown.
Right now all of these laws are being challenged in unfavorable districts. Some of them will certainly be upheld, forcing more trips to the S.C.–and possible losses.
Let’s stack the deck for our side a little.
June 28, 2010, 11:19 pmOrenWithAnE says:
It seems well within the legislature’s rights to conclude that driving a car is (more/less) impaired by alcohol than CCW. They aren’t even remotely equivalent activities, I don’t see why (at least a priori) they might not have different standards.
June 28, 2010, 11:22 pmORID says:
I stand by my comment. We need a Constitutional Amendment, a new one. Just like when the Supreme Court strikes down stuff by Congress, I guess “We the People…” need to go back and have the correct discussion with them over what the intent of the 2nd amendment is. Otherwise there is no 2nd amendment.
June 28, 2010, 11:24 pmOrenWithAnE says:
And the AG will not appeal and so the ruling will only apply in the district ….
June 28, 2010, 11:25 pmAllan Walstad says:
Right. Clearly there will be lots of litigation here, as anti-gun jurisdictions put up barriers in the name of “reasonable regulation,” and these are challenged.
In the national arena, gun control has been a loser for Dems, which is why you don’t hear them making a big issue of it, except in relatively few states and cities where it has a fervent constituency. What Dem politicos can do now is to hide behind Heller and McDonald, saying, well, it’s settled that folks can have a gun, we can’t do anything about that. They’ll keep trotting out “reasonable restrictions” rhetoric, but the pro-gun side will retain the initiative, with lawsuits and with a national legislative agenda to enforce 2A rights against the relatively few recalcitrant states. I think the anti-gun activists are now reduced to fighting a rearguard action at the state and local level. Helmke’s comments support this view. The wild card in all this is the possibility that Obama might get the chance to tip the balance on the Court and the left might take a shot at overturning Heller and McDonald. Here an analogy might be made with Roe v. Wade, which has held up for several decades in the face of intense opposition and seems very unlikely to go away.
Anyone who thinks gun owners are going to become complacent, that the NRA and other pro-2A groups are going to fade, is badly mistaken in my opinion. The anti-gun movement is likely to see its fair-weather friends wander off in other directions, while the hardcore haters get marginalized. Well, anyway, I hope so.
June 28, 2010, 11:41 pmJim March says:
“No guidance for the lower courts”? Really?
Are we reading the same document?
Start with the very first sentence Alito wrote:
—
Two years ago, in District of Columbia v. Heller, we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home.
—
This corrects a screwup by Scalia: no firm statement of “holdings” (or “held:”). You can find “Held:” in there all right, but Scalia didn’t write it – it’s in the legally non-binding syllabus written by a clerk.
As a result any number of “voices” (some even in black robes on the 9th Circus) have tried to claim that Heller was only about in-home “keeping” of arms, not “bearing”.
That argument is now gone. Alito and the rest of the “Heller 5″ have started out by clarifying Heller.
Next:
—
Finally, the Court abandoned “the notion that the Fourteenth Amendment applies to the States only a watered down, subjective version of the individual guarantees of the Bill of Rights,” stating that it would be “incongruous” to apply different standards “depending on whether the claim was asserted in a state or federal court.” Malloy, 378 U. S., at 10–11 (internal quotation marks omitted). Instead, the Court decisively held that incorporated Bill of Rights protections “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” Id., at 10; see also Mapp v. Ohio, 367 U. S. 643, 655–656 (1961); Ker v. California, 374 U. S. 23, 33–34 (1963); Aguilar v. Texas, 378 U. S. 108, 110 (1964); Pointer, 380 U. S., at 406; Duncan, supra, at 149, 157–158; Benton, 395 U. S., at 794–795; Wallace v. Jaffree, 472 U. S. 38, 48–49 (1985).
—
So clearly this isn’t a watered-down 2A the states are getting – it’s the same strength formula the Feds have to deal with. So ALL precedents off the DC bench coming up in Heller II (the “which guns again?” case), Parker (the DC carry case) and God knows what else will be quickly applicable nationwide.
—
Municipal respondents [ed: Chicago’s lawyers] assert that, although most state constitutions protect firearms rights, state courts have held that these rights are subject to “interest-balancing” and have sustained a variety of restrictions. Brief for Municipal Respondents 23–31. In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing, 554 U. S., at ___–___ (slip op., at 62– 63), and this Court decades ago abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,” Malloy, supra, at 10–11 (internal quotation marks omitted).
—
Translation: lower court judges are supposed to honor the 2A even if the result scares them, same as the exclusionary rule sometimes means murderers go free even when everybody in the courthouse from the janitor on up knows he/she/it is guilty. (The comparison to the evidence exclusion rule is made dead clear.)
And then in conclusion:
—
In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.
—
How many restrictions can be put on a “fundamental right”? A: not a lot!
Finally, we know that the Heller decision is Originalist through and through, and we NOW know that “bearing arms” is a right supported in the core holding. So when the Heller decision cites with approval a slew of seven prior cases at footnote 9 and in the text in that area supports the same idea, that limits on concealed carry can be supported only when open-carry rights are respected…that sounds like guidance to me! Again: if you haven’t already, read the Heller footnote 9 cases. You don’t have to read them all, they’re all based on the same core concept the Ohio Supreme Court supported in 2003 in the Klein case: concealed carry can be restricted only when open carry is legal.
This idea IS going to take hold. And when it does, can you say “open carry rally in Times Square”?
June 28, 2010, 11:45 pmLarryA says:
This isn’t really accurate.
If you look at the 2009 Brady Scorecard (pdf) you find states rated from 0 to 100 according to how much of the Brady “reasonable” gun legislation they’ve enacted.
California is highest with 79 points, New Jersey second with 73, then Massachusetts 54, Connecticut 53, Maryland 52, and New York 50. Therefore only six of the 50 states have enacted half or more of the Brady agenda, and even those strict gun-control states have rejected one fifth of it. That leaves forty-four states (88%) with less than half of the Brady laws.
Forty states have scores below 25, having rejected three-fourths of the recommended laws. Twenty-eight states (more than half) score 10 or less, having rejected 9/10ths of Brady’s “common sense” gun laws.
I submit that the courts in most states have not “upheld most gun control laws” because in most states, despite forty years of unremitting gun control efforts, such laws have never been passed. For instance, no Texas court could uphold a conviction for possessing an unlicensed gun. Texas doesn’t fool with such nonsense, and therefore there is no such offense to uphold.
On a state-by-state level, gun licensing, “assault weapons” bans, etc. are the aberration, not the norm.
Oh, and if you look at the trend, illustrated by the 2006 to 2009 Brady reports (no longer online) the steady trend is lower Brady scores, away from gun control and toward gun rights.
You sincerely believe recent restrictions on freedom of speech are “reasonable,” and the First Amendment isn’t in deep trouble?
I’m wondering where you live. Those Midwest Democrats are voting pro-gun not because the NRA won’t like them, but because their gun-owning constituents will unelect them.
June 29, 2010, 1:26 amMatthew Carberry says:
I don’t really have a problem per se with legislatures passing differing standards; but there are multiple states that use the above standard for carry and there’s no data to suggest it actually matters negatively when it comes to crime or accident rates.
If there’s no documentable harm, what rational basis exists to simply mimic the least restrictive laws proven to work in any given state?
If we as good egalitarians believe that all law-abiding adult Americans are equal in responsibility and maturity, mutatis mutandi, why not default to freedom over restriction at the state level?
June 29, 2010, 2:15 amSCOTUS skyder med skarpt @ Punditokraterne says:
[...] kan læse mere om dommen på den gode jurist-blog “Volokh Conspiracy”, bl.a. om dommens mulige konsekvenser. Cato Institute–der har været en central aktør i disse sager–har naturligvis også [...]
June 29, 2010, 8:24 amCJColucci says:
I predicted a long time ago that, however Heller and McDonald turned out, there would be a brief flurry of full employment for second amendment lawyers, but that, ultimately, very little would change. I see no reason to think differently now.
June 29, 2010, 11:07 amJMA says:
I take it, then, that you missed the part above where they talk about a very clear ideological split in the court? I’m not about to suggest that there’s a bright line between the two parties these days, but that seems like easy PR to me.
June 29, 2010, 11:25 amCarden Chronicles says:
Do you HONESTLYthink a ruling of The Court is going to stop Daley? I can hear his quote now, “Alito has made his ruling, now let him enforce it!” This is CHICAGO POLITICS we are talking about–
Daley is not only going to run with locks, lock inspections etc, he is going to place a “reasonable” licensing scheme in place– $50,000 per year (plus another $25K to $50K as a “donation” to “expedite” your paperwork”) for the license to start with– and he will claim that is reasonable– as will the District, as will the 7th Circuit, and this will all end up back before SCOTUS in 3 years– THEN he will pull another similar law– City approved ammo, purchased only from the City- again at $1000 per box (plus your “donation”)- and again he will claim it is reasonable- as wil the District, as will the 7th Circuit– and and this will all end up back before SCOTUS in 3 years after the last case. THEN he will pull another similar law–
(Do I need to continue– this is Daley and Chicago we are talking about– where do you think Obama and Emanuel learned their politics from?)
June 29, 2010, 11:50 ammark says:
I was always a staunch gun control proponent until I read Amar’s historical work which was overwhelming. It is a shame that an overwhelming majority of the justices are too ideologically inflexible to adapt their views.
June 29, 2010, 11:51 amThe Man Who Watches says:
Carden Chronicles I agree this ruling won’t stop Daley. However, if we can get enough weapons in the hands of Chicagoans, we, the people of the United States, just might be able to liberate them from their oppressors. The time for localized corrupt politics is over. I suspect with so many jurisdictions in the U.S. having permissive gun laws an underground movement could be put afoot in furtherance of advancing Federal Law in the Chicago area. This would do well in destroying the politically corrupt machine of Chicago politics and its corrupt policing policies. Let me be direct. The exact reason that guns are a right is the thwart the corrupt politics of geverning bodies. Therefore, Daley is playing into the hands of the people should he advance policies inimical to the laws and Constitution of the United States. This is the same thing that was done to prevent blacks from voting. This is a civil rights issue and as soon a people march in the streets of Chicago in protest, well then, Daley will see it another way. Only this time the people can march through the streets of Chicago as an armed citizenry. From my understanding of police psychology, when police officers lose the overwhelming firepower supremacy, they become tepid in enforcement endeavours.
June 29, 2010, 12:12 pmHercules says:
Now is the time to encourage our brothers and sisters to submit applications for concealed carry permits all over the country. If a large enough portion of the Law-abiding citizenry are permit holders and “keep and bare” their arms, no city, state or federal entity will be able to take them away.
Mark, the same here. I’ve read a few of his essays on the 2nd Amendment and he has convinced me beyond a shadow of a doubt that the 2nd Amendment provides an independent right to keep and bare arms.
June 29, 2010, 12:18 pmCarden Chronicles says:
While I agree with you on this– again this does not stop Mayor Daley… The reverse and “remand” leaves LOTS of time for the 7th Circuit to “procee[d] slowly and incrementally” and then “submit their opinion in longhand”
Unfortunately we are dealing with a VERY corrupt political environment in Chicago– Remember, 3 YEARS after Heller, there have only been 800 registrations in DC– and I cannot believe that there are ONLY 800 in DC that desire protection in their homes with a firearm– not after 3 years.
June 29, 2010, 12:33 pmHercules says:
I can’t believe only 800 DC permits either. I am going to write a letter to my Attorney General asking him to apply for Reciprocity with Maryland, Deleware, New Jersey and New York. Let those states say “NO” and possibly start the ball rolling in that direction.
June 29, 2010, 1:34 pmWilmer Warthog says:
This is slightly off topic–but only slightly. I have had problems with references to the Second Amendment as being about “gun rights.” Inanimate objects like pistols and long guns enjoy no “rights” under the constitution–people do. Second Amendment rights, I think, are properly referred to as “human rights,” “civil rights,” or “constitutional rights.” And I don’t point this out as a mere semantic quibble. Rather, the Daleys, Bradys, Bloombergs, Fentys, and their fellow travelers have used “gun rights” as a term of disparagement–as though Second Amendment rights are somehow not “real” rights, and certainly not on a par with, say, Fourth, Fifth, Sixth, or Eighth Amendment rights.
As someone once said, “the Second Amendment secures the others.”
June 29, 2010, 1:41 pmPrivet comrads! says:
Yeah, but is it an impeachable moment. I think not because his side lost. Now, if the case went the other way and Breyer still had this assessment of reality then we could talk. I beleive as some others Breyer is simply providing ammunition to the enemy in other cases that may occur later. We really do have to think of ideologies as being either friend or enemy.
June 29, 2010, 2:06 pmPrivet comrads! says:
Ok then, let’s suppose their is an image of “shouting fire in a theatre” applicable to the second amendment. How is this to be manisfested? Possibly by causing ridiculous amounts of fear by bearing a weapon in a scary way? I think Scalia uncovered something that touches this in Heller, but IIRC is was an inapt excuse for something that I can’t recall at the moment. Anyway hope you’re right and I beleive you should be right and so we must think of a way how this proposition should and must prevail while jamming the resistance. afterall it’s a fundamental right.
June 29, 2010, 2:19 pmporterhouse says:
Here is what John Lott at Big Government had to say about this,
Lott then goes on to write,
http://biggovernment.com/jlott/2010/03/01/more-guns-less-crime/
Stevens’ dissent in McDonald seems to indicate that his main problem is with handguns, and that if he had to write Heller over again he might be open to allowing guns for self-defense in the home, but he would allow states to ban handguns due to the fact they are more often used in crimes. Once again, congratulations to Volokh, he helped outflank the left and increase liberty for all Americans.
I just wish the liberal justices and academia had been more proactive and focused on liberty and self-defense instead of the way liberal special interest groups view the 2nd Amendment. I mean, Democratic politicians couldn’t even endorse the views of the justices they appointed due to the popularity of the notion of the right to self-defense.
June 29, 2010, 2:22 pmPrivet comrads! says:
Post Script to the previous “shouting fire” image in the second amendment. I’m sure the enemy will try to paste this reasoning to open carry, so all you constitutional experts better get cracking on a defense!
June 29, 2010, 2:24 pmMatthew Carberry says:
Unlicensed open carry is lawful and fairly non-controversial in most states (40+?).
Since factual evidence can be entered under higher levels of scrutiny it will be difficult for any restrictor to claim, with any intellectual integrity, that it is enough to constitute a threat in and of itself.
The irrational (based on the extant evidence about lawful carry in any format) bare fear of guns (also known as “prejudice”) of some people can’t be reasonably construed to allow an infringement of a fundamental civil right like carry.
June 29, 2010, 2:32 pmPlugInMonster says:
Wingutism.
June 29, 2010, 2:36 pmPlugInMonster says:
Winguts like to play cowboys.
June 29, 2010, 2:37 pmPrivet comrads! says:
I hope you don’t live in Cal because I’m going to use that state as an example.
The 40+ states you mention are not the enemy in this case (but they might be, I’d certainly hope the politics of those states don’t change too fast) it’s the other 10 or so states where a fundamental right most probably will get a little sticky. States like these have different ideas than you or I what constitutes a fundamental right.
June 29, 2010, 2:44 pmMatthew Carberry says:
The whole point is that now it doesn’t really matter what they think. The right is fundamental regardless.
If the standard of review is “least restrictive and most narrowly tailored” and almost every other state provides decades of example of allowing, for example, permitless loaded open carry (the most limited and narrowly tailored means of carry possible by definition) then the burden will be on those restrictors to explain in court (ie publically) why the people of their own state can’t be entrusted with the same freedom other state’s citizens take for granted.
Those pushing for controls on possession and carry can and should be asked why, for instance, the law-abiding people of California can’t be trusted with a non-restrictive concealed carry law, normal semiauto rifles and no permit required for open loaded carry if most of the US population seems to do so responsibly and safely.
Why do the leaders of NY, NJ CA et al not trust their own citizens? Don’t they believe in the principles of egalitarianism?
Put the burden on them to finally justify their baseless prejudices with facts and reason (which they don’t have).
June 29, 2010, 2:54 pmCheetoe says:
Privet might be saying malicious open carry simply to scare some of the citizenry, in much the same way that faking the proposition of fire in a theatre might not fall under the 1st protections, might not fall under 2nd protections.
June 29, 2010, 3:10 pmPrivet comrads! says:
Yes, thank you for seeing this. The original comment responded to a post script that made this point. Rather unfortunate it want any clearer thatn it could have been.
June 29, 2010, 3:15 pmMatthew Carberry says:
Ah, like “going armed to the terror of the public” as some statutes have it.
Absent some other overt action, which would then become the crime of assault or terroristic threatening or something, merely peaceably “bearing” is already being ruled as not meeting that “terroristic” standard in most jurisdictions.
Again, if “bearing” is a fundamental right under the Constitution the fact that some people feel faint simply seeing a holstered gun doesn’t constitute sufficient reason to abrogate the right; any more than some bigot not liking the look of “that kind of person” allows the state to restrict where “those people” can walk.
June 29, 2010, 3:16 pmPrivet comrads! says:
Yes that’s it exactly, and you know some juries (not sure about california) it’s juries themselves which decide what the facts are, and that’s where problems with integrity and identification can arise you see. Some states inculcate their citizens to certain norms differently than what you or i are used to. Simply the sight of a gun is going to set them off, (can’t blame them completely because for a while that’s how TV would present guns, remember Hawkeye and his irrational aversion to guns, he was a sensation in his day!)and that’s because how their communities and social networks have them beleive. THAT’S where things can go wrong. It’s those communities where the you will see more restrictions,I guess I am thankful those places are in the minority now and hopefully the tv networks will accept the idea of guns being constitutional and will present them in that light going forward (can’t count on it though, some producers will never change their beliefs).
June 29, 2010, 3:38 pmAllan Walstad says:
In regard to the likelihood of Daley and the Chicago machine putting all kinds of stumbling blocks in the path of would-be gun owners: that actually could be very useful! Every time he puts one up and the courts shoot it down, it firms up the right.
June 29, 2010, 3:55 pmPrivet comrads! says:
I can only hope the people who call Chicago the place where they live have the wherewithall to fight back against these types of attacks the enemy can puts up with the citizens money. A city has the advantage you know in these situations. Pro bono though is a wonderful thing. Now that the water is a little more comfortable I would like to see more of this to defend the historic right to defend oneself.
June 29, 2010, 4:05 pmPrivet comrads! says:
Post Script to the previous; I didn’t purposely set the color to green in the text above. Something went bombasute with that.
June 29, 2010, 4:41 pmzippypinhead says:
We’ll soon know if McDonald will have much practical impact. In addition to the related NRA case being remanded to the 7th Circuit for further proceedings along with McDonald, the 9th Circuit’s Nordyke v. King case will almost surely be taken off ice for another look by that Circuit (although I doubt the ultimate result will be different than the earlier panel decision).
Possibly of most interest: today SCOTUS vacated and remanded the Second Circuit’s Maloney v. Rice “nunchaku” case in light of McDonald. That case could expand the definition of permissible weapons for home defense under the Second Amendment, and set a Constitutional benchmark for judging other “type” restrictions like so-called “assault weapons” bans, and perhaps even eventually the NFA and §922(o).
June 29, 2010, 5:00 pmMatthew Carberry says:
One thing to bear in mind is that Illinois as a whole is far more friendly to possession and carry rights than is noticed due to Chicago’s influence. Daley’s machine is going to lose some of its influence with the state now that he is on the defensive. The state courts and legislature may be more willing to rein him in now that they have McDonald as political cover.
Similarly NYC may lose a bit of its ability to wag the dog of the more generally gun friendly upstate counties, particularly if it is forced to obey state carry and permitting laws. See also Denver.
Incorporating to the states this may break the back of the big cities that hold many generally gun friendly states (Cali is another one) hostage to their money and political clout.
June 29, 2010, 5:06 pmSCOTUSblog » Bonus end-of-Term round-up says:
[...] hearings, commentators continued to digest the Court’s most recent decisions. Ilya Somin of the Volokh Conspiracy suggests that McDonald v. Chicago will lead to “little if any change in the actual extent of gun [...]
June 29, 2010, 10:42 pmOrenWithAnE says:
An interesting historical question then, since as I recall many cities made it illegal to bear within their limits around the time of the founding.
On the other hand, “city limits” were few and far between …
June 29, 2010, 11:01 pmOrenWithAnE says:
Why the obsession with counting States? Those States comprise a full 25% of the population.
Accepted.
The States are not assumed to be homogeneous
Second, “proven to work” is a normative term. A legislature may opt to provide more freedom than the Constitution commands or they may opt to provide precisely the bare minimum. For instance, the FL 4A-analog explicitly refuses to be any stronger than the Federal 4A (largely because the SCOFL was interpreting it to be much broader, much to the dislike of the populace).
That’s a political, not legal argument.
Wait, why don’t the elected leaders of those States trust their citizens’ stated preferences for stricter gun control?!
[ Aside, I'm a moderate pro-gun guy. I am pro-Heller and pro-McDonald. It's absurd, however, to think that gun control in places like Chicago does not originate from a strong preference on the part of the voting public. That preference is, in my mind, not one that can be reconciled with the constitution.
You are dreaming if you think Daley wouldn't flip-flop to being pro-gun the second there was any electoral advantage to it. He rails against guns because it's popular to rail against guns. ]
June 29, 2010, 11:15 pmSarge6 says:
Liability insurance as a condition for exercising your 2nd Amendment rights is as to defamation/libel insurance as a condition for exercising your 1st Amendment rights. Discuss.
June 29, 2010, 11:24 pmMatthew Carberry says:
Oren,
You’re exactly right on the last two arguments I mention. They are political and for use against anti-gun politicians and activists.
The attempt is to turn the question around from the classic possession and carry as a privilege viewpoint, “Why do you need a gun? What are you afraid of?” to one based on the presumption of freedom, “Why do you think your own constituents or neighbors are less trustworthy or responsible than people in a different town/state?”
Try to control the narrative to emphasize that absolute freedom is the default state and it is the restrictions which need to be jusitified and defended with facts and logic, not emotional appeals.
In Illinois and NY for example the legislatures have strong pro-gun leanings in most of their rural counties but are effectively trumped by their big cities populations. The burden should be put on Chicago and NYC to defend their exceptionalism against the wishes of the rest of the state. Make them fight to carve out exceptions rather than imposing their will on everyone else.
June 30, 2010, 12:10 pmOrenWithAnE says:
This is just untrue, unless you count by district and not populace. IL-ians, by a large proportion, support very strict gun control. That’s true even in the conservative areas.
July 1, 2010, 12:27 amBonus end of Term round-up | theConstitutional.org says:
[...] hearings, commentators continued to digest the Court’s most recent decisions. Ilya Somin of the Volokh Conspiracy suggests that McDonald v. Chicago will lead to “little if any change in the actual extent of gun [...]
July 1, 2010, 12:43 amThe Carden Chronicles says:
\”Reasonable Restrictions\” from Chicago …
Ilya Somin at The Volokh Conspiracy wrote a great article about the practical impacts of McDonald v. Chicago. Ilya stated, \”The ideologically divided nature of the Courts decision suggests that the legal status of the Second Amendment isnt yet com…
July 1, 2010, 1:02 amMatthew Carberry says:
Of course I’m counting by district. The whole “problem” with most of the anti-gun states is the influence of the urban majority populations and their leaders who have bought into the gun control line of drivel.
If you look at the actual votes in the various Legislatures when carry bills and adding/loosening of restrictions come up they are uniformly voted down almost strictly based on population density, not even political affiliation.
If you control for urban centers in “anti-gun” states the map on support for gun rights changes dramatically.
July 1, 2010, 3:00 pmBrook Nicosia says:
We all have our hobbies and interests in life and we all have our skills. Your observations has surely provided with me quite a few completely new options. Thankyou.
July 7, 2010, 3:13 am