Second Amendment

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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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Yesterday, the Supreme Court heard oral argument in the latest big gun case, McDonald v. City of Chicago. The Court will decide whether the individual right to keep and bear arms recognized in 2008's D.C. v. Heller extends to the states. I was at oral argument and there seemed to be two big winners: gun rights advocates and gun control advocates.

The gun rights folks, like the NRA, seemed poised to win the case. Of the five Justices who voted with the majority in Heller, all appeared to be inclined to hold that the right to bear arms is a "fundamental" right such that it applies to state laws. (Well, not all of the five: Justice Clarence Thomas said nothing, extending his streak of silent oral arguments that dates back to 2006.)

Just like in the Heller oral argument, Justice Anthony Kennedy, the swing vote, showed his cards. "If [the right to bear arms is] not fundamental, then Heller is wrong, it seems to me." Chief Justice John Roberts said, "I don't see how you can read Heller and not take away from it the notion that the Second Amendment, whether you want to label it fundamental or not, was extremely important to the framers in their view of what liberty meant."

As Paul Clement, representing the NRA said, the question of whether the right to bear arms was fundamental or not was "remarkably straightforward." The fact that Clement was there at all was a surprise. The NRA was not formally a party to the suit. More striking still was that Clement was representing the NRA. After Clement, then serving as Solicitor General, filed a brief in Heller suggesting that D.C.'s handgun ban might be constitutional, gun rights activists branded him a traitor. Now he is their lawyer.