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Commentary: So, what’s next on guns?


If the Supreme Court’s historic ruling on gun rights brings about, as the dissenters said, “a dramatic upheaval in the law,” perhaps that was enough of a task to perform for one day.  And, in fact, Justice Antonin Scalia’s opinion for the Court conceded that the ruling in District of Columbia v. Heller was but a first step, saying: “Since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field.”   And it definitely did not.

Still, it is remarkable how much was left undecided, and, therefore, how wide-ranging the post-Heller litigation is going to be.  It is already apparent, from comments that the National Rifle Association was circulating among the news media Thursday, that the Nation will not have to wait long for those lawsuits — probably a flood of them — to begin.  Justice Stephen G. Breyer’s dissenting opinion lists a wide array of gun control laws now in force that, one suspects, the NRA will soon challenge.  Breyer, in fact, suggests that “the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States.”

In the omitted or otherwise unaddressed facets of the ruling, there is plenty to fill up court dockets from here on.

Before proceeding to the more substantial of these, it is worth noting that the Court did not even say why it had authority to hear and decide this case.  It did not say, for example, why the District of Columbia — a governmental oddity that is neither a state nor a branch of the federal government — is subject to the strictures of the Second Amendment.  That was a seriously debated issue when this case was in the D.C. Circuit Court, but the Supreme Court does not even mention it.  The opinion also does not decide, explicitly, why Washington security guard Dick Heller had a right to challenge the provisions of the D.C. law that the Court has now struck down — an issue that, in part, divided the Circuit Court (although the District of Columbia in its appeal did not challenge Heller’s “standing”).

Often, the opening pages of a Supreme Court opinion will address such basic issues, because the Court does not have the authority to simply reach out and decide any question that merely is interesting.  But the Scalia opinion provides less than a full page of background on the case, then leaps directly into “the meaning of the Second Amendment.”

What emerges thereafter, of course, is not the full meaning of the Second Amendment, but only a beginning slice of that meaning.

It does remove all doubt — and there has been doubt about this for years — that the Amendment means that there is an individual right to have a pistol to keep in one’s own home, in operating condition, for purposes of “confrontation” — warding off intruders, or perhaps, aggressive family members.

It also seems to mean (though this is only implicit) that there is, for the first time, a constitutional right to self-defense — or, at least, a common-law right of self-defense that is close to being of constitutional rank.

But, while it is important to have those points clarified for the first time in the 217-year history of the Second Amendment, there remains much still in the realm of the unknown.

First among the open questions, and perhaps one of the most important of them, is whether this ruling applies beyond the federal government and the District of Columbia government (assuming that it is settled that those two entities at least are now covered).

It is absolutely clear that the Bill of Rights’ specific guarantees of individual rights do not apply to any level below the federal government — that is, to state, county and city governments — unless the Court has ruled explicitly that they are to apply at those levels by a process that is called “incorporation.”  The Court has read into the Fourteenth Amendment — an amendment written to restrict state and local government powers — many of the rights in the first ten amendments.  That process began in the late 19th Century, and continued up through the first three quarters of the 20th Century.

But the process has not meant a total absorption of the Bill of Rights in the Fourteenth Amendment.  The Fifth Amendment right to be charged by a grand jury has not been applied to the states; neither has the Seventh Amendment right to a jury trial in a civil case.  And neither has the Second Amendment.

But conservative jurists, like those who made the majority in the Heller case, usually are not fond of lifting parts of the Bill of Rights out for inclusion under the Fourteenth Amendment.  Given the glowing rhetoric applied to the virtues of an individual right to have a gun, perhaps that reluctance might be overcome.

If, as expected, the NRA or some other litigant goes after a state or local gun law, relying on the Second Amendment, the Court may well have to answer explicitly whether it applies at all to such laws.  Some already are reading the Heller decision to signal a willingness say “yes” to that question; the evidence of that is of an uncertain nature, though.

Second among the issue not resolved Thursday is the standard of review that the Court will apply to judge the constitutionality of any other law that differs, even in a small detail, from the District of Columbia handgun ban that was nullified.   Justice Scalia’s opinion definitely rules out mere “rational basis” as the standard that a gun control law would have to satisfy.  As most lawyers know, rational basis is enough to uphold a good many laws.  The opinion also rules out a test for balancing the interest in having a gun against a government interest in regulating guns.  But further than rejecting those two standards, the Scalia opinion does not go.  The right, as he describes it, sounds as if it were fundamental in nature, deserving the highest constitutional protection. It does not say that explicitly, however.

Third, there is uncertainy about just why some forms of gun regulation already appear to have passed whatever test the Court did apply, perhaps only temporarily, in Heller.  Why does the Amendment not protect, for example, carrying a concealed weapon, as the opinion seems to say?  Or, why wouldn’t the right apply, as the opinion also seems to imply, to a gun being carried innocently into the Senate Office Building, as a U.S. senator’s aide once did?  Justice Scalia said justifications for such exceptions will have to wait.

Fourth, the Court opts not to rule on whether laws requiring a license to have a gun, even to have it only at home, so that part of the District of Columbia law survives — but perhaps only until the next test case.  The NRA surely would not leave licensing controls in repose.

Fifth, what kinds of guns does one have a constitutional right to possess, even if that right is limited to one’s own home?  The opinion gives some hints — “weapons typically possessed by law-abiding citizens for lawful purposes” — but the most that one can say with confidence is that pistols, easily loaded and easily handled, are definitely within the right of possession, in operable condition in the home, for self-defense.  Is a rifle something one can constitutionally have at home, even though not readily useable if one is suddenly attacked?  Or a repeating pistol?  The opinion does not say for sure.

Sixth, does a gun owner carry the constitutional right with him (or her) when he leaves the house or the apartment?  The right explicitly recognized in the Heller decision is strictly confined to “hearth and home.” Does that include the front porch, a balcony, the yard, the front sidewalk, the street, the neighborhood?  The Court does not set the limits.

As Justice Scalia’s opinion said in closing, “there will be time enough to expound upon” what was not decided Thursday.  And, no doubt, that time is coming soon.