D.C. v. Heller

[Part I of "Supersizing the Second Amendment?" is available here.]

So why do I still say that gun control advocates are also seemed to be big winners?

Because the Justices seemed to think that, regardless of incorporation, state and local governments would retain wide leeway to enact gun control. The only words used as much as "fundamental" and "implicit in ordered liberty" in the argument were "reasonable regulation."

Numerous Justices expressed their support for the idea that the Second Amendment did not prohibit reasonable regulation of firearms. Justice Kennedy said that lawmakers still "have substantial latitude and ample authority to impose reasonable regulations." Justice Ruth Bader Ginsburg said that she "thought that Heller allowed for reasonable regulation." Justice Scalia didn't use that catchphrase, but went out of his way to say that Heller "was very careful not to impose" severe limits on the federal government "precisely because it realized that" gun violence "is a national problem."

There are two ways to think about "reasonable regulation." The first is what I've long endorsed: the Second Amendment should be governed by the formal "reasonable regulation" standard uniformly used in state constitutional law. Forty-two states have constitutional protections for the individual right to bear arms and all of them apply a deferential standard by this name. Under that test, any regulation will be allowed to stand so long as it doesn't effectively destroy or nullify the individual's right to have a gun for self-defense. Some types of weapons can be banned so long as individuals have access to others. Applying this test, almost all gun control survives.

In its 2008 decision in District of Columbia v. Heller, a closely divided Supreme Court, applying what the majority characterized as "the original understanding of the Second Amendment," invalidated D.C.'s prohibition on the possession of handguns. Relying on eighteenth-century sources, the Court defined the Second Amendment right to "keep and bear arms" as "the individual right to possess and carry weapons in case of confrontation," and held that a prohibition on handguns was unconstitutional. The Court cautioned, however, that the Second Amendment is only a limitation on the powers of Congress, and reserved decision on the question whether it also applied to state and local governments by virtue of the Fourteenth Amendment. The Court noted that its nineteenth-century decisions had refused to apply the Second Amendment to state and local laws, but added that these cases "did not engage in the sort of Fourteenth Amendment inquiry required by our later cases."

The Court will now confront the applicability of the Second Amendment to state and local laws in McDonald v. City of Chicago. At issue is the constitutionality of Chicago's handgun ban. Chicago and its amici rely on the approach to incorporation of the first eight amendments within the Fourteenth that the Court has taken for nearly a century - asking whether a particular right is "implicit in the concept of ordered liberty." Under this approach, many of the rights in the first eight amendments have been incorporated within the Fourteenth Amendment's Due Process Clause - but not all.