What’s Next for Gun Rights?

Fordham Urban Law Journal in National Review Online, March 13, 2012

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To gun-rights supporters, the Supreme Court’s District of Columbia v. Heller and McDonald v. Chicago decisions may have felt like a dream come true — the Court recognized an individual right to keep and bear arms, and applied that right to state and local governments. Going forward, handgun bans are off the table in the U.S.

But judging by a conference hosted by the Fordham Urban Law Journal last Friday, the two sides of the gun-control debate have simply regrouped, recalibrated their expectations, and lined up for battle once again. As definitive as Heller and McDonald may seem, they offer little guidance to lawmakers and lower courts as to what kinds of gun control are still permissible.

For the pro-gun folks, Priority No. 1 is to make sure that Heller and McDonald have some practical effect. Despite the adverse court rulings, Washington, D.C., and Chicago have replaced their handgun bans with onerous requirements — such as registration and training — designed to discourage citizens from owning guns. A bill before the D.C. council would eliminate some requirements, as would a court case filed by Dick Heller (the plaintiff from the original decision). Numerous lawsuits have also been filed against Chicago’s post-ban regulations. While New York City has never banned guns outright, it too makes it difficult and expensive for residents to own guns and is facing court challenges.

But anyone who’s been paying attention to the Supreme Court knows that once the litigation ball starts rolling, it doesn’t magically stop when all the obvious abuses have ended. At the Fordham conference, UCLA law professor Adam Winkler estimated that 300 gun-rights suits have been filed. Many of these are frivolous, last-ditch appeals by criminals accused of misusing guns, and fewer than half a dozen laws have been invalidated.

Another panelist, the Independent Institute’s David Kopel, offered a rundown of court rulings that gun-rights supporters — or at least those who want the courts to micromanage state and local lawmaking — might hope for as the courts work out a system for balancing the public-safety aims of gun controllers against the Second Amendment rights of citizens. Bans on so-called “assault weapons” could be struck down because they do nothing to prevent crime. Courts could declare self-defense and the defense of others to be Second Amendment rights. They could even forbid public schools to punish students who fight back against bullies.

And while the Heller decision specifically noted that bans on concealed carry have a long history in America and have typically been upheld by the courts, several lawsuits seek to apply the right to bear arms outside of the home. Basically, the argument is that while bans on concealed carry are consistent with the Second Amendment, some rulings upholding such bans have noted that the jurisdictions in question allowed the open carrying of weapons. This suggests that states and cities may discriminate between open and concealed carry, but may not ban both. This is a questionable argument — as Winkler pointed out at the Fordham conference, through the course of American history, some states have banned open carry as well as concealed.

Also, Kopel claimed that Heller’s protection of bans on carrying in “sensitive places” is an “exception that proves the rule” (in the traditional sense of that idiom), but this is even more of a reach. The list he was referring to is non-exclusive — a footnote says it offers some “presumptively lawful regulatory measures only as examples” — and therefore the inclusion of a narrow regulation does not imply the exclusion of a broader one.

As for the gun-control movement, it appears to have disabused itself of the notion that gun bans are the way forward. “I have never supported a ban, I do not support a ban, and I can’t imagine that I ever would,” said Richard Aborn, who has been a Manhattan district attorney and a president of Handgun Control Inc. (now the Brady Campaign), at the Fordham conference. Later in the day, Michael Pastor, the acting first deputy criminal-justice coordinator in the notoriously anti-gun administration of New York mayor Michael Bloomberg, added: “Believe me, we do not sit in our office debating whether people have an individual right to own guns. We just don’t.”

But that’s not to say we won’t see new gun regulations in the coming years. No fewer than three panelists — Aborn, Pastor, and Florida State University criminologist Gary Kleck — suggested that we require private gun sellers (as opposed to licensed dealers) to conduct background checks on buyers. Aborn and Pastor also endorsed efforts to combat gun trafficking from states with loose gun laws to states with stricter ones — such as limits on how many guns one can purchase at once, and better enforcement of laws against straw purchasing.

Other ideas from Aborn included “microstamping” of guns and ammunition to make them easier to trace, and a nationwide gun registry. Kleck — whose research has typically shown gun control to be ineffective — suggested focusing on the people most likely to misuse guns, such as by improving the registry of people too mentally ill to own a gun, prosecuting felons who try to buy guns but are denied by background checks, and making more of an effort to arrest people who are wrongfully carrying concealed weapons.

Thus far, all the Supreme Court has done is to rule out the most extreme forms of gun control. Going forward, we’ll see how willing it is to be involved in day-to-day policymaking — and how effective the gun-control movement can be when its options are limited.