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Supreme Court, gun control, and the Second Amendment: a reckoning

The Supreme Court's next Second Amendment cases may decide which state and local gun-control laws can stand.

By Staff writer / March 2, 2010

A customer examines a 9-mm handgun at Rink’s Gun and Sport in the Chicago suburb of Lockport, Ill.

Frank Polich/Reuters/File

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Washington

In the nearly two years since the US Supreme Court struck down the District of Columbia's ban on handguns, more than 190 challenges have been filed seeking to overturn other gun-control laws or to reverse firearms convictions.

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Now, with the justices examining a similar ban in place in Chicago, gun-rights advocates are hoping for another landmark constitutional victory – this time extending an individual right to keep and bear arms in cities and towns across the country. (To see a preview of this case, click here.)

But the ultimate showdown over gun control in America will be waged in a future legal case not yet on the high court's radar, analysts say. At issue in that case: Are Second Amendment rights as fundamental as freedom of speech and religion, or will gun rights be subject to lesser constitutional protection?

The answer to that question – and the potential future course of gun control – may rest with a majority of the nine men and women on the Supreme Court. When that future case arrives, it will all boil down to a three-word phrase of legal jargon: "standard of review."

What does 'standard of review' mean and how does it relate to gun rights?

The way the Supreme Court protects individual constitutional rights against encroachment by the government is by weighing the government's interest in a particular law against the individual right preserved in the Constitution.

For example, when the government passes a law censoring people from engaging in core political speech, the court requires the government to demonstrate it has a compelling interest in the censorship and to prove that the measure is the least intrusive means of achieving that governmental interest. If it can't prove both, the law must be struck down.

Not all rights warrant the toughest level of constitutional protection. In the intermediate level, judges often attempt to balance competing interests to reach the proper outcome.

What standard of review do gun-control advocates want?

The Brady Center to Prevent Handgun Violence has filed a friend-of-the-court brief in the Chicago case urging the justices to establish a standard of review in which judges would be reluctant to overturn gun-control regulations enacted by elected officials.

"Gun policy is best determined as it always has been in this country: in the political arena, without courts second-guessing reasoned legislative judgments," writes Paul Wolfson in his brief on behalf of the Brady Center.

What standard of review are gun-rights supporters seeking?

Many argue that the Second Amendment right to keep and bear arms is a fundamental right that can be limited only in the narrowest circumstances and only when the government demonstrates a compelling reason. "We think the Constitution provides the proper test. It is: 'shall not be infringed,' " said Larry Pratt, executive director of Gun Owners of America, quoting from the amendment. "We think 'shall not' means 'none.' "

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