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McDonald v. City of Chicago : Much ado about not much?

Jon Lowy represents the Brady Center to Prevent Gun Violence, which filed an amicus brief in favor of neither party in McDonald v. Chicago.

The Supreme Court’s decision in McDonald v. City of Chicago to incorporate the Second Amendment may be a headline-grabber, but it is hardly surprising.  Virtually every commentator predicted that the same five Justices of the Supreme Court who ruled two years ago that the District of Columbia’s handgun ban was unconstitutional would hold that similar bans are not permitted when enacted by Chicago, or any other state or city.  Now all Americans can – as National Rifle Association CEO Wayne LaPierre put it – “experience” the Second Amendment.

But Wayne’s rhetoric aside, the rest of us should not be too worried.

The fact is, the McDonald v. Chicago case will likely have a very limited impact.  The Court reaffirmed the narrow contours of the Second Amendment right recognized in District of Columbia v. Heller, again holding only “that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense.”  As a result, bans on handguns in the home are no longer permitted.  But the bans in Chicago and Oak Park at issue in McDonald were the last of their kind in the nation.  There are no more gun-ban dominoes to fall in subsequent litigation.

The gun lobby also must be gravely disappointed that the Court in McDonald reaffirmed its statements in Heller that the Second Amendment continues to allow for a wide variety of reasonable gun laws.  The Court also quoted with approval the statement from one brief that, “[s]tate and local experimentation with reasonable firearms regulations will continue under the Second Amendment.”

Indeed, over forty states have already been “experiencing” a right to arms under their state constitutions, but courts in those states have consistently upheld reasonable gun laws.  McDonald should pose no broader threat to those laws.

That is not to say that the Court’s incorporation of the Second Amendment is harmless.  The McDonald decision will inspire the gun lobby and gun criminals to try to strike down vital, life-saving gun laws throughout the country, just as they brought over 260 challenges to gun laws since Heller.  Those challenges were virtually all rejected by the courts, and the next round of post-McDonald claims should meet a similar fate.  However, these challenges waste precious taxpayer resources and court time.  And once gun laws are in the hands of the courts, there is always the risk that a misguided judge will rule that the Second Amendment is far broader than what the Supreme Court has ruled.  But in the end, as Justice Alito suggested in his plurality opinion, “doomsday proclamations” that the decision will “imperil every law regulating firearms” are far from accurate.