Two years ago, when the Supreme Court was deciding the Heller case, I predicted that if the Court ruled that the Second Amendment applies to private individual's rights, rather than a state's, gun-rights advocates would rejoice in the short term but regret it in the long run. My argument was that, however Heller was written, it was likely to expand in application, which would create a backlash in favor of codifying a more active government role in gun control -- perhaps including a Constitutional amendment.
Today marks a major step in that direction, as the Court ruled this morning that Heller applies to state and local government as well as federal.
Let's back up. Heller challenged the very restrictive local handgun ban in Washington, DC. Because of the District's unique status, it falls under federal control.
A Heller ruling that reads the 2nd Amendment as an individual right restraining the federal government -- which is in fact what came down, in a 5-4 ruling -- would be viewed as a huge symbolic victory for gun-rights advocates, but would have almost no practical effect. A small number of DC residents would be able to legally keep handguns in their house, as the District (where the handgun ban is overwhelmingly popuular) predictably imposed not-quite-as-restrictive laws under the new reading. According to AP, a grand total of 800 handguns have been legally registered in DC since the ruling.
The big impact would come if the Heller ruling was later applied more broadly, either in jurisdiction or implication. The first of those has now arrived with today's ruling, which overturns Chicago's gun-control laws. I have not had a chance yet to read it, but my understanding is that it applies the Heller interpretation of the 2nd Amendment to all state and local governments.
From a purely political calculus, it's one thing to tee off Washington residents (who have no Congressional representation); it's another to thwart the will of urban residents all over the country -- and urban law enforcement, and urban prosecutors. There will be backlash; it's hard to predict where that backlash will lead.
It would be a much, much bigger deal if the Heller interpretation eventually expands in implication as well as jurisdiction. What I mean by that is the fairly obvious (to me, that is) problem of banning gun ownership based on certain criteria, if the 2nd Amendment means what the Court says it means.
If the 2nd Amendment means that private individuals have a right to own and possess handguns, in the same way that they have the rights enumerated in the 3rd through 8th Amendments, then I just don't see how you can justify federal and state law that bans, say, people with past felony convictions from owning guns, or unlawful drug users, or illegal aliens, or dishonorable discharges from the armed services, or a variety of other qualifiers that have been in place for some 40 years in this country.
Yes, Constitutional rights are not absolute; you famously cannot yell fire in a crowded theater. But our gun laws are ridiculously overbroad if we're thinking of gun ownership the same way we think of peacably assembling, or freedom from warrentless search and seizure, or right to trial by jury. (Recent rulings about war-on-terror detainees should make clear that you've got to be a hell of a lot more violent than a typical convicted drug dealer to justify the denial of Constitutional rights on the basis of posing potential public danger.)
In Heller, Justice Scalia, who wrote the opinion, gave absolutely no rationale to explain why such laws -- which currently aggrieve millions of would-be gun owners and thousands upon thousands of people convicted of gun possession -- would not run afoul of his new interpretation of the 2nd Amendment. He simply brushed it aside in a typically Scalian obiter dictum:
"Although we do not undertake an exhaustive historical analysis today of the
full scope of the Second Amendment, nothing in our opinion should be taken to
cast doubt on longstanding prohibitions on the possession of firearms by felons
and the mentally ill, or laws forbidding the carrying of firearms in sensitive
places such as schools and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms."
Not yet having read the new ruling, I don't know whether this was addressed at all by Justice Alito, who wrote the lead opinion this time. There is no question in my mind that if, at some point, portions of those broad gun-control laws get struck down, there will be a strong move toward a Constitutional Amendment affirming the government's right to restrict the possession, ownership, and sale of firearms. Whether today's jurisdictional expansion of Heller is enough to do so will be interesting to watch.
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