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Dennis A. Henigan

Dennis A. Henigan

Posted: October 5, 2009 03:42 PM

The Gun Issue Is Back in the Supreme Court: What Does It Mean?

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It is no surprise that the Supreme Court has decided to hear the so far unsuccessful constitutional challenge to the Chicago handgun ban. The Court's ruling last year in District of Columbia v. Heller, discovering a new Second Amendment right to personal gun possession unrelated to militia service, determined that D.C., and by implication Congress, could not ban handguns consistent with the Second Amendment. However, because D.C. is a unique federal district, Heller did not address the so-called "incorporation issue" -- whether the Second Amendment applies to states and localities through the operation of the 14th Amendment. That issue is squarely presented in the Chicago case.

Now that the other Second Amendment shoe has dropped, what are the potential repercussions? It is hard to stay calm whenever this Supreme Court -- still with a conservative majority -- gets its hands on a gun case. But there may be less here than first meets the eye. Although the Chicago case involves interesting constitutional issues, even if Chicago loses, such a ruling is unlikely to prove a serious threat to state and local gun regulation across-the-board.

First, the Chicago case, like the D.C. case, involves a handgun ban. Even before Heller, only a handful of cities, and no states, had such laws on the books. After Heller, only two Illinois cities -- Chicago and Oak Park -- retain their handgun bans. Even if the Chicago law is struck down, such a ruling would not necessarily jeopardize strict gun regulation falling short of a handgun ban.

Second, the right declared in Heller is narrow in scope -- the right to have handguns in the home for self-defense. If the Supreme Court holds that the Second Amendment now applies to states and localities, only that narrow right will be extended. Of course, the pro-gun ideologues will try to convince the courts in other cases to expand the narrow Heller right. In fact, Alan Gura, the same lawyer who brought both the Heller and the Chicago cases, has filed a new lawsuit in D.C. challenging the City's restrictions on carrying guns outside the home. But the Chicago case itself will not establish a broader right.

Third, and most important, the Heller opinion itself erects an important bulwark against the successful use of the Second Amendment to strike down other state and local gun regulations. I am referring here to the extraordinary discussion by the Court of other gun laws not even at issue in the Heller case. The Court wrote, "Like most rights, the right secured by the Second Amendment is not unlimited." Indeed, said the Heller majority, "nothing in our opinion should be taken to cast doubt" on a wide range of gun control laws, which the Court said remain "presumptively lawful" even under the newly-declared right.

Those "presumptively lawful" categories under Heller include laws imposing conditions on the commercial sale of guns, bans on dangerous and unusual weapons, bans on carrying concealed weapons, laws forbidding firearms in sensitive places, laws to regulate gun storage to prevent accidents, laws prohibiting gun possession by felons and the mentally ill, etc. The Court even made it clear that these measures were listed "only as examples" and the list "does not purport to be exhaustive."

Sure enough, this Heller language has served to protect a remarkable variety of federal gun restrictions challenged since Heller, including bans on gun possession by felons, domestic violence misdemeanants, and persons under restraining orders, bans on sawed-off shotguns and machine guns, laws restricting guns in school zones, post offices, and other public property, and others. Even if the Heller right is extended to the states, the Supreme Court's own words in Heller are likely to be the death knell for challenges to gun laws that regulate guns, but do not ban guns commonly owned for self-defense.

There is no question that innocent Americans are losing their lives, and suffering debilitating injuries, on a daily basis because our nation has failed to enact strong and sensible gun laws. The problem, however, is not the Heller decision. Nor is it likely to be whatever the Supreme Court decides in the Chicago case.

The problem is not constitutional. It is political. Too many spineless politicians cower in fear of the gun lobby and shut their eyes and ears to the suffering in their own communities from the easy access to guns by dangerous people. On guns, it is our political leaders, not the Constitution, standing in the way of lifesaving reforms.

For more information, see Dennis Henigan's new book, Lethal Logic: Exploding the Myths that Paralyze American Gun Policy.