Huffpost Politics
Sam Stein Headshot

States, Courts Driving Gun-Control Policy

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WASHINGTON -- The real battle over the future of gun-control policy will not take place in the halls of Congress, but largely away from the national spotlight in a patchwork of legal cases and state-level decisions throughout the country.

This outsourcing began long before the shooting of 20 individuals, including Rep. Gabrielle Giffords (D-Ariz.), in Tucson this past weekend. But the response to that shooting has underscored how removed from the debate Congress truly is. Over the past months, weeks and even days, a series of major gun policy-related developments have occurred with barely any input or commentary from federal legislators -- or, for that matter, the national press.

In late December, the Ohio State Supreme Court handed gun-rights advocates a victory when they ruled that Cleveland and other cities could not pass laws that were stricter on assault-weapons restrictions and handgun-registration requirements than those of the state.

In Texas, the state legislature has pledged to take up several bills -- or perhaps one package -- that would allow firearms at colleges and exempt guns and ammunition from sales taxes, among other proposed changes.

Montana passed a law declaring that any firearms manufactured and sold within state boundaries were exempt from federal reach. The federal district court in Montana ruled against the state, concluding that the weapons were still subject to the U.S. Constitution's Commerce Clause. (Full disclosure: my wife worked on the case for the Department of Justice.) But 19 states are considering a similar measure, and an additional eight -- including Arizona -- have passed one.

Some gun-policy debates have gotten even more local. This past week, the University of Utah's president asked school trustees to stop legislation that would allow the open display of firearms on campus.

And none of this includes the litigation that grew from two of the most significant gun-policy decisions handed down in decades: District of Columbia v. Heller, which determined that the Second Amendment protects an individual's right to possess a firearm, and McDonald v. Chicago, which applied that finding to the states.

"Those cases have opened up a flood of litigation in the lower federal courts and the state courts," said Don Kates, a retired professor of constitutional and criminal law. "And there is certainly going to be a whole lot more litigation until the parameters are more clear."

The fault lines of the gun wars have shifted, perhaps irrevocably, to the courts and state lawmakers, experts say, with federal legislators all but relinquishing their role in shaping policy.

"States can do things others can't, and there just haven't been many successes on the federal level in quite a while," said Jim Kessler, a former director of policy and research at Americans for Gun Safety,

Tragedies such as that which occurred in Arizona do have the potential to refigure the landscape. And in interviews with The Huffington Post throughout the week, activists cautioned against assuming that the legislative responses to the Giffords' shooting -- both to limit the size of clips and to keep firearms at a safe distance from lawmakers -- were doomed to failure.

"I hope they're wrong about that," said Dennis Henigan, Vice President of the Brady Campaign/Center to Prevent Gun Violence and author of "Lethal Logic: Exploding the Myths that Paralyze American Gun Policy." "The problem you find in these situations is that there is immediately all this speculation about whether something will happen in Congress. A lot of people will say it won't, and that tends to cut off debate around the real issue, which is should it happen?"

Even with a legislative window cracked open, the likelihood of congressional action is remote. Years of intense legal battles and local initiatives have forced groups to reshuffle their priorities. And for Henigan and other activists the focus remains very much on the hodgepodge of gun policy being made in the courts and around the country, not, say, on convincing skittish lawmakers to take tough votes.

"Democrats are scared shitless about the issue of gun control," Kates said. "Bill Clinton produced a situation where he strongarmed various legislators into voting for these laws and most of them then lost their jobs. They remembered that. And if Obama were foolish enough to make gun control a major plank and try to twist people's arms to vote for gun bans, which he has shown no inclination to do, there would be a whole lot of people saying, 'Yeah, Bill did the same thing 20 years ago, and both House and Senate turned Republican.'"