The Supreme Court’s historic ruling this week that clarified Americans’ right to own a gun for self-defense left a crucial question unanswered, one that will be resolved only after many years and a torrent of litigation, legal experts said Friday.
Is gun ownership a “fundamental right” under the Constitution, or something less? Put simply, is a gun akin to an automobile, a legal but dangerous product that can be strictly regulated by the government? Or is a gun more like a book, both legal and largely off-limits to government regulation?
“There’s a lot that needs to be sorted out. The big question is: Is this like the 1st Amendment and the freedom of speech?” said John Eastman, dean of the Chapman University School of Law in Orange. He once was a clerk on the high court.
2nd Amendment scope
The nature and scope of the 2nd Amendment right will determine whether many gun restrictions are struck down, or only the most extreme measures, like the District of Columbia’s ban on private handguns even in homes.
In the past, the high court has adopted a two-tiered approach when weighing claims. If a law or government regulation conflicts with an individual’s “fundamental right” under the Constitution, the balance weighs in favor of the individual. Since a book is protected by the fundamental right to free speech in the 1st Amendment, no one would think authors in this country need to be licensed and their writings officially inspected by the government.
But if no fundamental right is involved, the court has said, government may insist on strict regulation to protect the public. No one would think it is unconstitutional for the state to require motorists to have a license and insurance, to have their cars inspected, and to obey speed limits.
Gun-rights advocates have long insisted that the 2nd Amendment protects a law-abiding citizen’s fundamental right to have firearms for self-defense, and they won a historic but not total victory this week.
Justice Antonin Scalia said the court would leave it to another day to decide the nature of the right to a gun.
UCLA Law professor Adam Winkler said the court “left the most important question unanswered: What exactly does the 2nd Amendment prohibit? The majority refused to adopt a standard of review for judging future disputes. This is unfortunate, because lower federal courts and state courts should now see a tidal wave of litigation challenging gun-control laws.”
To be sure, Scalia made clear that most restrictions should stand.
“The court’s opinion should not be taken to cast doubt on long-standing 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,” he wrote in the majority opinion.
The 2nd Amendment right to bear arms is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” he wrote.
But dissenting Justice Stephen G. Breyer said the decision would “encourage legal challenges to gun regulation” and “leave the nation without clear standards for resolving those challenges.”
Breyer added: “And litigation over the course of many years, or the mere specter of such litigation, threatens to leave cities without effective protection against gun violence and accidents during that time,” Breyer said.
Lawyers for the National Rifle Assn. said their first targets would be ordinances in Chicago and San Francisco that restrict homeowners from keeping handguns. They hope that victories in those cases will lay the foundation for challenging other restrictions.
California allows gun owners to carry a concealed weapon if they obtain a permit. NRA attorney Chuck Michel said he expected legal challenges to be filed in Los Angeles and San Francisco because officials there regularly rejected requests for permits.
“Licensing and registration are hot issues,” Michel said. “I don’t think the Supreme Court would strike down licensing entirely. But we will look for an opportunity to challenge a policy that denies concealed-weapons permits.”
Application of gun-permit laws has analogies in the 1st Amendment. For instance, the high court has ruled that cities may require permits for demonstrations and limit them to public parks or other open areas, but that cities generally may not give some groups a permit to demonstrate while denying a permit to another group with a different message.
UCLA’s Winkler expects the high court to uphold reasonable regulations of firearms, even if the justices say the 2nd Amendment is like the 1st Amendment, he said.
“Just as the 1st Amendment does not protect one’s ability to falsely shout ‘Fire!’ in a crowded theater, the 2nd Amendment does not protect one’s ability to stroll down Rodeo Drive with a bazooka,” said Winkler, who had filed a friend-of-the-court brief supporting the District of Columbia’s handgun ban. “A few extreme gun-control laws will be invalidated, but the vast majority of restrictions will survive.”
The dissenting justices did not sound as confident, however. Justices Breyer and John Paul Stevens said the court’s decision could have a broad effect. It “threatens to throw into doubt the constitutionality of gun laws throughout the United States,” Breyer wrote.
The justices also barely touched on a threshold issue for future lawsuits.
The decision in District of Columbia vs. Heller did not say the 2nd Amendment applies to states and localities. Washington, D.C., is not a state.
Until the early 20th century, the Bill of Rights was assumed to limit only the federal government, not the states; now the presumption is that the Constitution protects Americans against the government at all levels -- federal, state and local. But the Supreme Court has not said the 2nd Amendment applies to the states.
“That’s the next case to come up, but I think it’s a foregone conclusion” that the 2nd Amendment will extend to state and local laws, said Washington lawyer Alan Morrison, who wrote the District of Columbia’s opening brief defending its law when he was a city attorney.
In the wake of Thursday’s ruling, Morrison said: “The bottom line is, it looks like a full-employment decision for lots of gun lawyers and state, federal and municipal lawyers.”