When the Supreme Court, three years ago, issued its landmark Second Amendment ruling in District of Columbia v. Heller, Wayne LaPierre of the National Rifle Association said it was only the "opening salvo" in a long legal war to use the courts to dismantle the nation's gun laws. So far, Heller has been more of a cap gun than an assault weapon in the "gun rights" arsenal.
The legal significance of Heller is unquestioned: the High Court declared, for the first time in history (and in defiance of history), that the Second Amendment guarantees an individual right to a gun in the home for self-defense. The practical significance of the ruling, however, is something else again. If anything, Heller has largely resulted in a reaffirmation of the constitutionality of laws to restrict access to firearms. For the "gun rights" forces, it has been three long years of frustration.
It is true that, two years after Heller, the Supreme Court, in McDonald v. Chicago, extended the Second Amendment right to be a restraint on state and local law, in addition to federal law. But in both Heller and McDonald, the Court struck down local handgun bans and only a handful of jurisdictions had ever passed such laws anyway. As described in a new Brady Center report, Hollow Victory?, since Heller, a broad range of federal, state and local gun laws has been upheld by the courts, including bans on gun possession by felons, persons convicted of domestic violence misdemeanors, persons under restraining orders, illegal aliens and other categories of prohibited persons. The courts also have upheld bans on machine guns and assault weapons, registration and licensing laws, as well as other laws that are not nearly as far-reaching as the D.C. and Chicago laws. In addition, the courts have steadfastly refused to extend the Second Amendment right outside the home, upholding state restrictions on the carrying of concealed weapons. Despite over 400 challenges to gun laws since Heller by the gun lobby and others, including many by criminals who have violated those laws, the edifice of American gun laws remains intact.
Heller's limited impact is not surprising, given the language of the opinion itself. The right announced by the Court was the right of "law-abiding, responsible citizens to use arms in defense of hearth and home." Nothing in Heller suggests a constitutional right to carry a gun in public places like restaurants, coffee shops, airports and bars. Second, even the right to have a gun in the home is limited to "law-abiding, responsible citizens," giving legislative bodies ample leeway to impose regulations to reduce the risk that guns will find their way into the hands of those who are lawless or careless. Third, Heller even provided a catalogue of longstanding gun restrictions that the Court said remain "presumptively lawful" even under the newly-created right, language expressly incorporated into the McDonald opinion as well. Generally speaking, the lower courts have read this language to suggest that they should avoid second-guessing the policy judgments of elected officials on the control of deadly weapons.
The continued deference by the courts to legislative judgments on guns is, I believe, an implicit recognition that the Second Amendment right is a unique kind of constitutional guarantee. The courts are learning that the exercise of the right to have a gun in the home exposes the person exercising the right, his family and his acquaintances, to an extraordinary risk of physical harm. This cannot be said for any other provision of the Bill of Rights. Courts are feeling the weight of the consequences of making judgments about gun policy that, quite literally, could cost innocent people their lives. Let's hope the courts continue to recognize the gravity of those possible consequences.
The realization of what is at stake in Second Amendment cases recently was eloquently expressed by Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the Fourth Circuit, who taught me constitutional law at the University of Virginia a (frightfully) long time ago. In a case upholding a federal regulation barring the possession of a loaded handgun in a vehicle in a national park, Judge Wilkinson wrote of Second Amendment litigation: "This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights."
When Heller was handed down, one leading "gun rights" advocate advised that if he were "a young man today, I'd be smart to go to law school and become a Second Amendment lawyer. I'd be able to send my grandkids to college." Indeed, a cadre of lawyers is making a living from the Second Amendment now and the onslaught of cases is likely to continue. Despite the reassuring results to this point, the threat remains ever-present that right-wing activist judges will enforce their own pro-gun ideology and begin to strike down lifesaving gun laws. But, for now, the courts have been willing to leave life-and-death decisions about gun policy largely in the hands of the people's elected representatives, where those decisions rightly belong.
For more information, see Dennis Henigan's Lethal Logic: Exploding the Myths that Paralyze American Gun Policy (Potomac Books 2009).
This and past entries also are posted at the Brady Campaign.