While most state constitutions protect a right to keep and bear arms, state courts almost always deem state gun regulations "reasonable" and uphold them on that basis. In McDonald, the plurality stressed that its holding will not end ""experimentation with reasonable firearms regulations.'" But it left undisturbed the Court's strong suggestion in District of Columbia v. Heller (2008), the D.C. guns case, that a more demanding test is appropriate.

In McDonald, as in Heller, however, the Court declined to articulate the standard under which firearms regulations should be evaluated. When discussing whether the Second Amendment applies to the States, the plurality explained that the right guaranteed by the Amendment is "fundamental from an American perspective." That statement does not necessitate use of the Court's most restrictive test, strict scrutiny. As Justice Stevens lamented, "today's decision  . . . could mire the federal courts in fine-grained determinations about which state and local regulations comport with the Heller right . . . under a standard of review we have not even established."

Since Heller, some courts grappling with which standard to apply to laws that affect the Second Amendment have settled on "intermediate scrutiny." Rather than simply asking whether a firearms law is "reasonable," courts using that test ask whether a law is "substantially related to an important government interest."  This standard, perhaps more so than strict scrutiny, is consistent with the plurality's reiteration in McDonald that the Second Amendment does not interfere with certain "longstanding regulatory measures," such as prohibitions on bringing guns into schools.

But today, the Court declined to adopt this "“ or any other "“ standard for review. In the face of this uncertainty, lower courts are exceptionally likely to latch onto three, relatively concrete pieces of Second Amendment jurisprudence.

First, the Second Amendment does not afford an unlimited right to weapons ownership. The Court explained in Heller that the Amendment's protection of the right "to keep and carry arms" is limited to weapons "in common use." "[D]angerous and unusual" weapons " – M-16 rifles and the like – may be banned."  While the Court did not explain how to evaluate a regulation that restricts access to a weapon protected by the Second Amendment, if a weapon is not protected, a court need not select a level of scrutiny under which to evaluate it.

Second, courts will rely heavily on "“ and extrapolate from "“ the "presumptively lawful" regulations described by the Court in Heller. Each of those presumptively permissible regulations is described below.

Third and finally, in the absence of more direct guidance from the Supreme Court, lower courts will likely view as persuasive the decisions of courts that have already applied Heller. So while the Court did not endorse a standard of review, its failure to specify a standard reserves influence for lower courts that have directly addressed the standard-of-review issue.

Assault weapons bans

LCAV describes assault weapons as "a class of semi-automatic firearms designed with military features to allow rapid and accurate spray firing." At least some form of assault weapon is banned in California, Connecticut, Hawaii, Maryland, Massachusetts, New Jersey, and New York. Minnesota and Virginia regulate, but do not ban, assault weapons.

State courts have upheld bans on assault weapons, generally holding that the gun rights protected by state constitutions were adequately protected by the availability of alternative firearms. The Court's opinion in Heller, however, rejected the District's argument that handguns may be banned under the Second Amendment "so long as the possession of other firearms . . . is allowed."

There are nonetheless two reasons why narrowly-defined bans on assault weapons are likely to be deemed consistent with the Second Amendment. First, those weapons may be deemed "dangerous and unusual," and thus outside the Amendment's protective scope. Second, when the Court rejected the District's argument in Heller, it stressed that "the American people have considered the handgun to be the quintessential self-defense weapon" "“ language cited by the Court in McDonald. If true, that statement is a reasonable response to an argument that other weapons are legal: quintessential weapons are, after all, atypically difficult to replace. The argument has less salience when adequate substitute firearms are readily available.

Handgun bans

In Heller, the Court rejected the District's functionally complete ban on "handgun possession in the home." In McDonald, the Court directed a lower court to apply Heller's protections to the non-federal laws at issue, and required that every state and local law comply with those protections.

No state prohibits all handguns. But some ban particular types of handguns, such as so-called "junk guns," which LCAV describes as "cheap, easily concealed, and more likely to misfire or malfunction than other firearms."

These handgun bans may survive scrutiny "“ at least less-than-strict scrutiny "“ even if the Second Amendment inhibits their regulation. But these bans highlight a line-drawing problem within the Court's Second Amendment jurisprudence, and provide a potential source of future disagreement amongst the lower courts.

In Heller, the Court held that the Second Amendment only protects weapons "typically possessed by law-abiding citizens for lawful purposes." To determine whether a type of weapon is "typically possessed," a court must first select the level of generality at which it will characterize a weapon. If a "junk gun" is characterized only as a handgun, it is a type of weapon to which the protections of the Second Amendment extend. Second Amendment advocates will press that characterization because such prohibitions have the paternalistic feel of measures intended to protect owners rather than the public, and perhaps to limit firearms' possession.  But if it can be defined more narrowly, then its ownership for lawful purposes may be far less typical, and its protected status far more dubious. Gun control advocates will argue this view, in part because as LCAV notes, such guns are "disproportionately associated with criminal misuse." Because there is no "correct" level of generality, courts may disagree about whether the Constitution inhibits bans on particular types of handguns.

Because courts will rely heavily on arguments that a type of weapon is not protected by the Second Amendment, this seemingly abstract dilemma may soon pose concrete difficulties for state courts and legislatures.

Child protection (including trigger locks and storage requirements)

In a brief submitted during the McDonald litigation, the City of Chicago and the Village of Oak Park expressed concern that incorporation would prompt a challenge to "“ and possible defeat of "“ regulations that protect children. They noted that "one survey shows 27 States impose criminal or civil liability for improperly storing firearms or allowing children to access or use them," and that "[s]ome require firearms to be secured with a trigger lock, placed in a locked container, or stored in a secure, inaccessible location." Moreover, they worried, such regulations would be jeopardized by applying Heller to the states, because in Heller, the Court struck down the District's "prohibition against rendering any lawful firearm in the home operable for the purposes of immediate self-defense."

McDonald's application of Heller to the states will not necessarily jeopardize these sorts of regulations. Heller addressed a prohibition on rendering a firearm operable in the home. A complete ban on operability is quite different from an impediment to operability. The Court stated quite plainly in Heller that its opinion "did not suggest the invalidity of laws regulating the storage of firearms to prevent accidents." Interpreting the word "immediate" in "immediate self-defense" to bar every measure that sought to prevent accidents would ignore the Court's insistence that the right to bear arms is not unlimited. Again, such a result is not guaranteed if courts adopt a very stringent standard for review. But we believe most courts are unlikely to strike down such laws unless compelled to do so by the Court, particularly given that four members of the Court are committed to not recognizing any such right at all.

Barring certain individuals from gun ownership

Under the laws of almost all states, certain persons are ineligible to purchase or possess firearms. In Heller, the Court deemed "presumptively lawful" the “longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Courts have relied on that passage in upholding the convictions of felons charged under federal law with illegally possessing firearms. As the Court appears to have intended, these types of restrictions are unlikely to be struck down.

But some similar restrictions are of much more recent origin. A federal law passed in 1996, 18 U.S.C. § 922(g)(9), prohibits the possession of firearms by any person "who has been convicted in any court of a misdemeanor crime of domestic violence." Since Heller, courts have disagreed about whether that prohibition is "presumptively lawful." Sentencing Law and Policy's Douglas Berman and Eugene Volokh of the Volokh Conspiracy have expressed skepticism about the reasoning employed by the Eleventh Circuit in rejecting a challenge to the law in United States v. White.

Many state-law prohibitions go beyond even this federal law. In California, Colorado, New Jersey, New York, Texas, and Virginia, for example, courts may prohibit gun possession by persons merely charged with a misdemeanor crime of domestic violence. LCAV notes that "[t]welve states require . . . law enforcement to remove at least some firearms at the scene of a domestic violence incident," and that six "authorize, but do not require" such removals. McDonald's requirement that these laws be consistent with the Second Amendment does not necessarily entail their rejection. But in the near future, at least some state courts will almost certainly strike down laws, created to protect victims of domestic violence, that arguably offend the right to keep and bear arms.

Indeed, the Court's failure to articulate a standard of review is likely to have particularly strong consequences when courts evaluate these types of regulations. First, the weapons affected, like handguns, will often qualify for the Second Amendment's protection. Second, though the regulations are similar to some "presumptively lawful" regulations, an analogy between these laws and disarming convicted felons is somewhat attenuated. Third, courts that have addressed this sort of question have not done so uniformly; even merely persuasive authority cuts in different directions. In McDonald, the court left this area of the law in turmoil.

Registration requirements

Today's McDonald decision involved a Chicago law requiring would-be firearm owners to comply with the City's extremely onerous firearm registration regime. The Court today held that Chicago's law must comport with the Second Amendment, but left to a lower court the question of whether the particular law at issue is unconstitutional.

LCAV reports that "[s]even states and the District of Columbia require registration of some or all firearms." It further notes that "[a]though registration laws vary, they typically require gun owners to record the ownership of their firearms with a designated law enforcement agency."

Most extant state registration regimes are likely to be upheld. California, Connecticut, Maryland, and New Jersey "have banned assault weapons[,] but allow continued possession of such weapons if they were lawfully owned on a specified date and are registered." Louisiana similarly imposes a limited registration requirement. Courts will uphold these laws insofar as they affect "dangerous and unusual" weapons not protected by the Second Amendment.

But although the Second Amendment does not shield every weapon from regulation, laws requiring the registration of all firearms assuredly affect weapons within the Amendment's protective ambit. A registration requirement applicable to all firearms "“ like Hawaii's "“ must therefore withstand a court's scrutiny, whatever that may entail.

In a decision that courts looking for guidance may find persuasive, a federal judge in the District of Columbia has already applied intermediate scrutiny to one set of such requirements. SCOTUSblog's Lyle Denniston described the court's opinion, in which the judge upheld the entirety of the District's extensive registration regime. Lyle explained that a person seeking to register a weapon in the District must:

submit fingerprints and two photographs, show knowledge of local gun laws, have visual capacity sufficient to get a vehicle driver's license, prove completion of a gun-use or safety course, show how the gun will be used and where it will be kept, and notify District police if the gun is stolen, transferred, sold, lost or destroyed.

That opinion is no guarantee that other courts will reach similar conclusions. But its breadth strongly suggests that the more limited registration requirements elsewhere imposed on protected weapons "“ like handguns "“ have a good chance of being upheld.

Licensing requirements (including concealed weapons)

LCAV reports that "[f]our states require licenses for all firearm purchasers or owners, while seven states license all handgun purchasers or owners." The organization explains that two types of licensing regimes predominate. The first, a "permit to purchase" scheme, requires would-be gun owners to "obtain a permit or license prior to purchas[ing]" certain weapons. The other regime requires a license as a condition of gun ownership. In Massachusetts, for example, firearm possession requires "either a Firearm Identification (FID) card or a Class A or B license," all of which entail an application process. That process includes a background check, safety training, and gives the state forty days to make a decision. Each card or license is valid only for six years, and costs one hundred dollars to obtain.  Some jurisdictions, including Massachusetts, employ both approaches.

In Heller, the Court explicitly declined to address the District of Columbia's licensing scheme. In so doing, it left open the question of whether "“ and which "“ licensing requirements are acceptable.

Licensing requirements targeted at guns outside the purview of the Second Amendment will by definition be upheld. Whether other requirements survive court scrutiny depends, in part, on the impediment that such requirements pose to protected gun ownership.

A variety of factors may suggest that a licensing requirement constitutes a constitutional or instead impermissible limitation on the right to keep and bear arms.  Cost, delay, and discretion will relate inversely to the probability that a court will uphold a licensing regime.

Courts are, however, very likely to uniformly uphold licenses that restrict the carrying of concealed weapons. The Court stressed in Heller that the Second Amendment does not afford an unlimited right to keep and bear arms. Providing an example, it noted that "the majority of 19^th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful . . . ." That line will heavily influence state courts nationwide.

Conclusion

McDonald's extension of the Second Amendment to state and local gun regulation will undoubtedly prompt a flood of firearm-related litigation "“ especially because the Court did not specify a standard of review. The above list of potential controversies is not exhaustive. In the brief period of time since Heller, litigants have already challenged a ban on armor-piercing ammunition and large-capacity magazines, to provide only a few examples.

Some challenges will be quickly dismissed. Courts will likely uphold regulations that the Court deemed "presumptively lawful," including "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings," and some "laws imposing conditions and qualifications on the commercial sale of arms."

But McDonald is unquestionably a landmark case. Its impact will be felt in every state, and especially in cities that more tightly restrict firearms than the states in which they are contained. By affecting the scope of permissible limitations on firearm possession, the decision may also redefine the types of searches and seizures that states may reasonably conduct.

Today was the last day this Term that the Court will hand down opinions. And while the Court's decision in McDonald comes at the end of Justice Stevens' career, it almost certainly marks the beginning of "“ as he put it "“ an "avalanche" of litigation to determine what exactly the decision entails.

In association with Bloomberg Law

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With a strong plea to revive the Constitution’s ill-fated Privileges or Immunities Clause, lawyers for four Chicagoans told the Supreme Court on Monday that history shows clearly that the Second Amendment’s protection of personal gun rights applies to state and local laws as fully as to those at the federal level.  The brief is dominated by a wide-ranging survey of the meaning and origins of the  privileges clause of the Fourteenth Amendment, only seven pages of the 73-page brief are devoted to another provision of that Amendment: the Due Process Clause.  (The Court presumably is more familiar with the Due Process Clause, repeatedly litigated for decades even as the Privileges or Immunities Clause has lain largely dormant.)

In a bold thrust, the attorneys for the challengers to Chicago’s strict handgun ban asked the Court to strike down three of its prior rulings: the Slaughterhouse Cases in 1873 — the ruling that made the privileges clause a nullity — and two decisions limiting the Second Amendment to a restriction only on federal laws: U.S. v. Cruikshank in 1876 and Presser v. Illinois in 1886.  “Faced with a clear conflict between precedent and the Constitution, this Court should uphold the Constitution,” the brief argued.

The Slaughterhouse precedent, “and its unavoidable progency, Cruikshank and Presser,” the brief said, “established that the States could continue to violate virtually all privileges and immunities of American citizens, including those codified in the Bill of Rights, notwithstanding [the Fourteenth Amendment] Section One’s clear textual command to the contrary.”  Those three rulings, it added, “lack legitmacy.”

“When this Court first passed on the Fourteenth Amendment, it announced a theory of the Privileges or Immunities Clause never apparently considered by anyone during the framing and ratification process, standing diametrically opposed to every statement of intent and understanding related to the Privileges or Immunities Clause,” the document asserted.  “With this decision, civil rights inhering naturally in individuals, and which predate the Constitution, would be left to the States’ protection.”

The phrase “privileges or immunities,” the McDonald counsel said, had long been synonymous with rights in general, but acquired “additional heft” with an 1823 court ruling interpreting that clause to have a sweeping breadth.  That was the decision in Corfield v. Coryell, which Supreme Court Justice Bushrod Washington wrote while “riding circuit” on a lower court in Pennsylvania.

“The Fourteenth Amendment reflected the broad common usage of ‘privileges or immunities,’ including the pre-existent natural rights of the sort identified in Corfield and the personal rights guaranteed by the Bill of Rights,” according to the filing.  And yet, it noted, the privileges clause “was all but erased from the Constitution” in the Slaughterhouse ruling in 1873.

“Slaughterhouse transformed the Framers’ broad protection of individual liberty, commonly understood, into a clause securing only the most obscure rights, rarely exercised by any American and with which the States could not ordinarily interfere even had they the will to do so.”

The brief sought to trace the “privileges or immunities” concept back to James Madison in his original articulation of what would become the Bill of Rights, then followed it through the pre-Civil War period, and then through the drafting and ratifying process after the Civil War had ended and the Union moved to codify its victory over the Confederacy and its social structure.

“In sum,” the brief said, “a straight line of popular understanding of ‘privileges’ and ‘immunities’ runs from Madison through Corfield, leading abolitionists, Dred Scott, and the Fourteenth Amendment’s Framers.”  The clause, it contended, embraces natural, fundamental rights, as well as “the rights codified in the first eight amendments” — including, of course, the Second.

The document’s discussion of the Due Process argument focused on the fact that that provision “has incorporated virtually all other enumerated rights,” and contended that there is no reason to make the Second Amendment an exception.

The city of Chicago has 30 days, under the Court’s Rules, to file its merits brief. That time can be extended, but the Rules say that such an extension at the merits stage “is not favored.”  UPDATE Tuesday a.m.  The city, in fact, has obtained an extension to file its brief — until Dec. 30, a two-week extension.

In association with Bloomberg Law

The so-called “incorporation” issue is the most significant sequel issue raised in the wake of the Court’s 2008 decision in District of Columbia v. Heller, recognizing for the first time a personal right to have a gun for self-defense, at least in one’s home.

If the Court agrees to hear the new cases after its first look, that could be announced as early as the day after the Conference — that is, on Wed., Sept. 30.  The first Conference of a new Term customarily is held in advance of the Term’s formal opening; this year, the Term starts Oct. 5.

The Court has not yet scheduled a time to consider another pending case on the Second Amendment issue — Maloney v. Rice (08-1592). The response in that case is now due on Aug. 28.  The new Justice, Sonia Sotomayor, took part in the Maloney case when she was on the Second Circuit Court.  Like the Seventh Circuit, the Second found that the Second Amendment only applies to federal laws.  When the Justices consider the Maloney case, Sotomayor is not expected to take part.  The fact that she had taken part in a ruling on the issue in one case, however, would not require her to withdraw from considering cases from other Circuits, like the Chicago cases.

In association with Bloomberg Law