A minimal effect on gun control
on Jun 29, 2010 at 10:29 am
Adam Winkler is a law professor at the University of California, Los Angeles.
Todayâ€™s decision marks a major change in constitutional doctrine but one that will likely have only a minimal effect on gun control. Â For the first time, the Supreme Court held that the Second Amendment serves as a limit on what regulation state and local governments can impose on the right of individuals to have guns. Â Two years ago, in District of Columbia v. Heller, the Court ruled that the Second Amendment guaranteed an individual right to keep and bear arms unrelated to militia service. Â But that decision only applied to federal laws. Â Now the Second Amendment, like most provisions of the Bill of Rights, applies to all governmental entities in the United States.
From the perspective of gun rights, however, that isnâ€™t as big a change as it may seem at first. Â Forty-two states already guarantee individuals the right to have guns in their state constitutions. Â McDonald extends that right to the remaining eight outliers. Â None of those eight states, however, ever tried to completely ban gun ownership and qualified individuals can lawfully obtain guns in every one. Â The Second Amendment now applies more broadly, but gun rights more generally were secure long before this decision.
McDonald could still have a significant effect on gun control if the law of the Second Amendment were radically different from the state constitutional law doctrines relating to the right to keep and bear arms. Â So far, however, the two regimes are mostly the same. Â As I have shown elsewhere, under state law, courts tend to judge the constitutionality of gun control under a relatively deferential standard of review. Â Known as the â€œreasonable relationshipâ€ testâ€”which is not the same as rational basis reviewâ€”this standard is uniformly used in state after state, and has been for over a century. Â There have been hundreds of state cases applying this standard to challenged gun laws, the vast majority of which have survived.
To date, the Second Amendment hasnâ€™t led to radically different outcomes. Â Since Heller, there have been approximately two hundred federal court decisions on the constitutionality of gun control under the Second Amendment. Â Nearly every challenged gun law has survived. Â Formally, the Supreme Court has not adopted the reasonable regulation standard universally used in the states. Â But practically, the results have been the same. Â Other than a complete ban on handgunsâ€”which, apart from Chicago and its suburbs, no state or city hasâ€”gun control remains constitutionality permissible.
To be sure, McDonald will lead to a flood of lawsuits challenging every sort of gun control. Â And some laws, like New York Cityâ€™s extreme and discriminatory permitting scheme and Californiaâ€™s refusal to approve certain guns designed for left-handed shooters, could be invalidated in the months and years to come. Â But if the scores of federal court decisions under Heller are any indication, the primary hurdle for gun control advocates will remain in the legislatures, not the courts.