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Dennis A. Henigan

Dennis A. Henigan

Posted: June 1, 2010 04:58 PM

What If Chicago Loses Its Gun Case?

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As the Supreme Court's term enters its last month, we still await the Court's ruling in McDonald v. City of Chicago, the Second Amendment challenge to Chicago's handgun ban. The case poses the question whether the right to be armed recognized by the Court in its 2008 ruling in District of Columbia v. Heller applies to constrain state and local gun laws. Although most observers think the same five justices who made up the 5-4 Heller majority will vote to extend the right to states, cities and counties, many may be too quick to predict dire consequences for gun control from such a ruling.

Two consequences are most likely from a ruling striking down Chicago's handgun ban. First, the decision will be used by the gun lobby, as well as gun criminals, to challenge a myriad of state and local gun laws. Second, with few exceptions, those challenges will fail. We can say this with some confidence for several reasons.

First, it is important to keep in mind the nature and scope of the right that would be applied to states and localities. In the words of Justice Scalia's majority opinion, the Second Amendment guarantees "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." The Heller decision confers no rights on those who have violated the law or acted irresponsibly. In addition, the Heller right applies only to self-defense in the home, not to carrying guns in public. Although some have expressed concern that a ruling against Chicago would cripple "stop and frisk" and other law enforcement tactics against illegal carrying of guns on the street, nothing in Heller itself would jeopardize those tactics.

Second, the Heller majority went out of its way to make clear that strong gun regulation short of a handgun ban would still be permissible, regardless of the new right to be armed. According to Justice Scalia, the Second Amendment right is not "to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Instead, the Court said, "nothing in our opinion should be taken to cast doubt" on several broad categories of gun laws, which the Court said remain "presumptively lawful." Those categories, which the Court said did "not purport to be exhaustive," include laws imposing conditions on the sale of guns (which could include background checks, licensing, registration, etc.), bans on dangerous and unusual weapons (which could include machine guns and assault weapons), and prohibitions on carrying concealed weapons. Heller's assurance that prohibiting concealed weapons remains "presumptively lawful" further suggests that extending the Heller right to the states would pose no threat to police tactics against illegal guns on the streets.

Heller's narrow definition of the right to be armed, and its reassuring language about other guns laws, thus far have ensured the defeat of virtually every post-Heller challenge to federal gun restrictions. (Two judges struck down provisions of the Adam Walsh Act barring gun possession by persons awaiting trial for child pornography offenses, a vindication of "gun rights" about which the NRA has been oddly silent.) Even the strong gun laws passed by the District of Columbia in the wake of Heller, which include a registration system, fingerprinting and training requirements, an assault weapon ban, a limit on gun purchases, and other provisions far stronger than federal law, recently were upheld as entirely consistent with Heller. This should embolden Chicago to enact similarly strong laws even if its handgun ban is struck down.

In assessing the likely impact on other gun laws of a Chicago defeat, one additional fact generally has been overlooked. As the gun lobby likes to boast, forty-two states already have provisions in their state constitutions interpreted by the courts to confer an individual right to be armed for personal purposes unrelated to militia service; that is, an interpretation similar to that given the Second Amendment in Heller. Gun laws in those states already have been challenged under these state constitutional provisions and, as Professor Adam Winkler of UCLA Law School writes, "only a fraction of state gun laws have been invalidated on the basis of the right to bear arms since World War II."

Of course, these state court rulings are not binding on the federal or state courts as they apply the new Heller right. Nevertheless, in all but eight states, those bringing Second Amendment challenges to state and local gun laws will confront a consistent judicial tradition of according great leeway to legislative judgments about how the right to be armed may properly be regulated. And of the six states that do not have right to bear arms provisions in their constitutions (California, Iowa, Maryland, Minnesota, New Jersey, New York), or that recognize only a militia-related right (Kansas and Massachusetts), all but Iowa, Minnesota and Kansas have very strong traditions favoring gun control and, of course, no tradition of judicial interference with gun laws.

If Chicago's law is struck down, it will no doubt be hailed by the NRA as a great victory, as was Heller. But the most ardent "gun rights" advocates can barely hide their disappointment with the practical impact of Heller. They likely have more disappointments to come after McDonald.

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