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Dennis A. Henigan

Dennis A. Henigan

Posted: June 29, 2010 11:25 AM

The other Second Amendment shoe has been dropped by the Supreme Court. What does it mean for the future of gun control?

Two years ago, the Supreme Court, in District of Columbia v. Heller, struck down the District of Columbia's handgun ban and ruled, for the first time in our history, that the Second Amendment guarantees the right to have a gun in the home for self-defense. The Heller ruling, however, applied only to D.C. as a federal enclave and, impliedly, to Congress. Within hours of that ruling, a lawsuit was filed in Chicago challenging Chicago's similar handgun ban and raising the question whether the Heller right applies as a constraint on state and local gun laws through the Due Process Clause of the Fourteenth Amendment.

We now have the ruling that virtually all observers expected. In McDonald v. Chicago, the Court ruled the new Second Amendment right recognized in Heller applicable as a constraint on state and local gun laws. The 5-4 decision, sounding the death knell for Chicago's handgun ban, tracks precisely the vote in Heller. The McDonald dissents, filed by justices Stevens and Breyer, are brimming with renewed hostility toward the Heller ruling, including a fascinating discussion in the Breyer dissent of the blistering attack by professional historians on Heller's butchering of history in the name of "originalism."

Given that several states (and a few cities) have gun laws far stronger than federal law (which remains anemically weak, despite the Brady Law), does McDonald lay the groundwork for the unraveling of important state and local gun restrictions? If the gun lobby thinks so, it is likely to be sorely disappointed.

As an indicator of the real world implications of McDonald, the key passage in Justice Alito's opinion says this: "It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not 'a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.'" Alito then reprises the remarkable language in Heller, offering assurances of the continued validity of several broad categories of gun laws (including laws regulating the sale of guns, laws banning guns in sensitive places, laws banning concealed weapons, among others) and adds: "We repeat those assurances here."

The Heller assurances have functioned to create "safe harbors" for the federal gun laws challenged in the wake of that decision. Time after time, the lower federal courts have upheld existing laws that arguably fit within, or are analogous to, the categories of "presumptively legal" gun laws cited in Heller. Now that the Court in McDonald has restated the importance of the Heller categories, they are likely to function as "safe harbors" for state and local gun laws as well.

Of course, there will be, as Justice Stevens predicts, an "avalanche" of legal challenges to gun laws in the wake of McDonald, some by the gun lobby, but most by criminal defendants seeking to overturn indictments and convictions for violating those laws. It is unfortunate that taxpayers will end up bearing the burden of defending against these challenges to entirely reasonable gun laws. Fortunately, however, McDonald provides no reason to believe that the laws themselves will be in jeopardy. Yes, there will be pitched courtroom battles in the states with the strongest gun laws, but with the lives of countless Americans at stake, they will be battles that must be fought.

So far, the oddest reaction to the McDonald decision is from the NRA's Wayne LaPierre. Far from the purely celebratory statements he made after Heller, yesterday LaPierre himself conceded that the "constitutional victory" in McDonald could end up eventually as a "practical defeat". Indeed, LaPierre has already put together his "enemies list" of those to blame for such a defeat, including "activist judges, defiant city councils, or cynical politicians." Is he preparing his membership for the disappointments to come, as all manner of state and local gun laws are upheld and elected officials are emboldened to enact even tougher laws?

LaPierre may also be contemplating the future of the gun debate now that handgun bans are "off the table," in the words of the Heller majority opinion. How long will the NRA's leadership be able to argue, with anything approaching a straight face, that the Second Amendment precludes gun regulations like background checks, limits on large-volume sales, safe storage requirements, assault weapon bans, owner licensing, and registration of gun sales, when both Heller and McDonald read like legal briefs for the constitutionality of those laws? And, more importantly, how long will the NRA's leadership be successful in using its legendary scare tactics to convince gun owners to oppose every gun regulation as a step down the "slippery slope" to a gun ban, when Heller and McDonald have taken gun bans "off the table"?

Viewing Heller and McDonald from LaPierre's vantage point, an old expression comes to mind: Be careful what you wish for. It could come true.

For more information, see Dennis Henigan's Lethal Logic: Exploding the Myths that Paralyze American Gun Policy (Potomac Books 2009)