McDonald v. Chicago

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By Adam Winkler, a constitutional law professor at UCLA School of Law. You can follow him on Twitter @adamwinkler.

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Today's decision in McDonald v. Chicago marks a major change in constitutional doctrine but one that will likely have only a minimal effect on gun control. For the first time, the Supreme Court held that the Second Amendment serves as a limit on what regulation state and local governments can impose on the right of individuals to have guns. Two years ago, in District of Columbia v. Heller, the Court ruled that the Second Amendment guaranteed an individual right to keep and bear arms unrelated to militia service. But that decision only applied to federal laws. Now the Second Amendment, like most provisions of the Bill of Rights, applies to all governmental entities in the United States.

From the perspective of gun rights, however, that isn't as big a change as it may seem at first. Forty-two states already guarantee individuals the right to have guns in their state constitutions. McDonald extends that right to the remaining eight outliers. None of those eight states, however, ever tried to completely ban gun ownership and qualified individuals can lawfully obtain guns in every one. The Second Amendment now applies more broadly, but gun rights more generally were secure long before this decision.

McDonald could still have a significant effect on gun control if the law of the Second Amendment were radically different from the state constitutional law doctrines relating to the right to keep and bear arms. So far, however, the two regimes are mostly the same. As I have shown elsewhere, under state law, courts tend to judge the constitutionality of gun control under a relatively deferential standard of review. Known as the "reasonable relationship" test-which is not the same as rational basis review-this standard is uniformly used in state after state, and has been for over a century. There have been hundreds of state cases applying this standard to challenged gun laws, the vast majority of which have survived.

To date, the Second Amendment hasn't led to radically different outcomes. Since Heller, there have been approximately two hundred federal court decisions on the constitutionality of gun control under the Second Amendment. Nearly every challenged gun law has survived. Formally, the Supreme Court has not adopted the reasonable regulation standard universally used in the states. But practically, the results have been the same. Other than a complete ban on handguns-which, apart from Chicago and its suburbs, no state or city has-gun control remains constitutionality permissible.

To be sure, McDonald will lead to a flood of lawsuits challenging every sort of gun control. And some laws, like New York City's extreme and discriminatory permitting scheme and California's refusal to approve certain guns designed for left-handed shooters, could be invalidated in the months and years to come. But if the scores of federal court decisions under Heller are any indication, the primary hurdle for gun control advocates will remain in the legislatures, not the courts.

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By Adam Winkler, Professor of Law, UCLA School of Law. Professor Winkler signed an amicus brief filed in McDonald v. City of Chicago supporting incorporation through the Privileges or Immunities Clause of the Fourteenth Amendment.

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[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.