Dennis A. Henigan [Vice President for Law and Policy, Brady Center to Prevent Gun Violence]: "I was in the courtroom on Tuesday for the Supreme Court argument [PDF file] in McDonald v. City of Chicago, in which the Court is considering whether the new Second Amendment right, created two years ago in District of Columbia v. Heller, is incorporated under the Fourteenth Amendment as a constraint on state and local gun control laws. Unsurprisingly, the same five justices who formed the Heller majority and voted to strike down the District of Columbia's handgun ban, now seem poised to vote for incorporation and strike down Chicago's handgun ban. Although this will be hailed by the gun lobby as a victory, there was much about Tuesday's argument suggesting it could eventually prove to be a hollow victory indeed.
There was sharp disagreement among the justices about the incorporation issue (although there was absolutely no enthusiasm, even within the conservative majority, for the crusade of the petitioner's lawyer, Alan Gura, to resurrect the long-dead Privileges and Immunities Clause as a source of broad substantive constitutional rights). There was, however, one idea around which the justices seemed to coalesce: even if the right is incorporated, states and localities will retain broad power to regulate the right in the interest of public safety.
The discussion of necessary limits on the right to be armed began with a trenchant observation by Justice Breyer. He asked Attorney Gura this question: "Is this right different from others?" Justice Breyer then answered his own question by making two points.
First, he noted that empirical issues involving guns are hotly contested ("You know, one side says a million people killed by guns. Chicago says that their their gun law has saved hundreds, including...lots of women in domestic cases. And the other side disputes it.") and that "[w]ithout incorporation, it's decided by State legislatures; with, it's decided by Federal judges."
Second, Justice Breyer pointed out that in First Amendment cases, the courts often have to balance free speech interests against other societal interests, but that this balancing does not often involve "free speech versus life." Indeed, "[w]hen it's free speech versus life, we very often decide in favor of life." What makes the Second Amendment different, Justice Breyer continued, is that "[h]ere every case will be on one side guns, on the other side human life." In other words, Second Amendment cases are inherently life and death matters. He then questioned whether Federal judges are better suited to make such difficult decisions than state legislatures.
These observations by Justice Breyer led to a series of statements by various Justices offering assurances that, despite Heller, legislative bodies at every level of government should retain broad authority to enact gun restrictions without judicial interference. Of greatest significance were the comments of three of the five justices who made up the Heller majority. Justice Roberts recognized that the right to keep and bear arms is "still going to be subject to the political process if the Court determines that it is incorporated in the Due Process Clause." Justice Kennedy, thought to be the swing vote in Heller, put it this way: "...there are provisions of...the Bill of Rights, that have been incorporated against the States, where the States have substantial latitude and ample authority to impose reasonable regulations....We look to see what the political process does...[W]hy can't we do the same thing with firearms?" And, perhaps of greatest significance, Justice Scalia commented that his opinion in Heller "was very careful not to impose a broader definition" of the Second Amendment right to apply to federal law because the Court "realized that this is a national problem." That's right, Justice Scalia, the Court's great gun enthusiast, recognizing the need for strong federal gun laws because gun violence is a national problem. For gun control advocates, it doesn't get much better than that.
These comments by members of the Heller majority appear to embrace the position argued in the amicus brief [PDF file] filed by the Brady Center to Prevent Gun Violence and several national police groups that, regardless of whether the Second Amendment applies to the states, it should be read to allow for reasonable gun regulations. They also hearken back to language in the Heller opinion, clearly intended to respond to the dissent's charge that the majority opinion would put other gun laws at risk. The majority memorably wrote that "nothing in our opinion should be taken to cast doubt" on broad categories of gun laws, which remain "presumptively legal" even under the newly-discovered right, including laws imposing "conditions and qualifications" on the sale of firearms, prohibitions on carrying concealed weapons (which was mentioned as a permissible restriction several times in yesterday's argument), and bans on "dangerous and unusual weapons."
The argument in McDonald gives hope that the McDonald majority, even if it strikes down Chicago's handgun ban, will amplify the Heller message that the Second Amendment erects no constitutional barrier to reasonable laws at any level of government - to make it harder for dangerous people to obtain dangerous weapons. The gun lobby will be displeased, but the American people will have dodged a constitutional bullet."
Dennis Henigan is Vice President for Law and Policy at the Brady Center to Prevent Gun Violence and author of Lethal Logic: Exploding the Myths that Paralyze American Gun Policy (Potomac Books 2009).