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.
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The court is engaged in what could become a three-step process. The Washington decision in 2008 established that the Second Amendment protects an individual right to keep and bear arms for self-protection in the home.
In the second step, the court will determine whether the Second Amendment applies to state and local governments. The case currently before the court, McDonald v. Chicago, is a challenge to Chicago's handgun ban, which is like the one struck down in Washington. If the high court extends the same Second Amendment protection nationwide, then the third step would involve the court establishing a uniform standard of review to guide lower court judges in assessing which gun-control measures are permitted under the Second Amendment.
What have the justices said about the standard of review in gun cases?
The majority justices addressed this issue briefly in the Washington decision. "Like most rights, the right secured by the Second Amendment is not unlimited," wrote Justice Antonin Scalia.
"Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms," Justice Scalia said. (For Monitor coverage of the Washington decision, click here.)
This suggests that the majority justices were of the view that some gun-control laws will be subject to a level of intermediate judicial scrutiny. But it's not clear whether that standard will apply in all cases, or whether others will require more rigorous "strict scrutiny."
Why is the standard of review so important?
It is potentially the most significant aspect of the Supreme Court's emerging Second Amendment jurisprudence, because it will determine which gun-control laws will be upheld and which won't.
The Washington decision brought a flood of challenges to gun-control laws, but most were upheld, said Dennis Henigan, vice president for law and policy at the Brady Center. "There has not been a wholesale invalidation of gun laws, with only one exception," he said. That involved a law forcing anyone indicted for child pornography to immediately surrender his or her firearms. Two federal judges invalidated the law because it violated the presumption of innocence.
What record do state judges have when ruling on gun-control measures?
In assessing the constitutionality of gun-control laws, Mr. Henigan said, state judges have placed significant weight on the government's interest in regulating firearms as a means to protect public safety. The Supreme Court should adopt the same rationale, he said.
Mr. Pratt of Gun Owners of America disagreed: "I should be able to carry a firearm wherever and however I want without any never mind from the government," he said.