October 15, 2010

Gun Regulation After Heller and McDonald

District of Columbia v. Heller, McDonald v. City of Chicago, Second Amendment

Two recent Supreme Court cases that recognized an individual right under the Second Amendment have not had the revolutionary impact on gun rights that some envisioned, UCLA School of Law professor Adam Winkler said during an ACS panel discussion on gun regulation in the wake of District of Columbia v. Heller and McDonald v. City of Chicago.

Some 200 federal court gun regulation decisions have come down since Heller and McDonald struck down gun bans in Washington, D.C. and Chicago, and not one has invalidated a law on the basis of the Second Amendment, Winkler said, although he noted that some settlements have resulted in changes to laws.

"In many ways, Heller's bark was worse than its right," said Winkler, who coauthored a recent ACS Issue Brief on the Second Amendment.

Moderator Jamal Greene, an associate professor at Columbia Law School, noted the history of the Second Amendment, which, until the 1980s, was understood as "implying a right to keep and bear arms in connection with the duties of a state militia. It was not understood to be an individual right or something that is justiciable as an individual right."

Heller affirmed that there is an individual right to bear arms, Greene explained, but it did not announce a standard of review "or tell us very much about other gun laws that implicate rights."

This was the challenge presented to the District of Columbia following Heller, explained Councilmember Mary Cheh, who represents Ward 3 on the D.C. Council, and is a professor at George Washington University School of Law.

"What we did was adopt a series of regulations that probably are the strictest in the nation and might set us on this path of figuring out what's permissible and what's not permissible," Cheh explained.

She said the key to passing new regulations was ensuring that written testimony, oral testimony or other evidence was available to justify the law in court.

"Because we are the nation's capital, I think we are a special jurisdiction," Cheh said. "And I think we've done the best we can in terms of a legal challenge to insulate ourselves. Whether we prevail or not is going to be another question."

Watch the full discussion below.