Gun-rights supporters are going to have to come down from their
post-Heller high a little earlier than they’d hoped.
There’s already a considerable amount of legal maneuvering taking
place, and for much of it, a bullseye is uncertain.
Most promising are challenges to gun bans nationwide. Since the
Supreme Court struck down the capital’s ban, it’s almost a
no-brainer to predict the Court will strike down those in places
like Chicago and its suburbs as well.
There’s a slight wrinkle when it comes to “incorporation” —
D.C. is a federal enclave, so in Heller the Court didn’t
have to decide whether the Second Amendment applies to state and
local laws as well. However, for the most part, the Bill of Rights
has been incorporated (a city council can’t limit free speech, even
though the First Amendment only restricts “Congress”), and there’s
no reason to expect anything different to happen when it comes to
gun rights.
The wild card lies in what the Supreme Court will determine to
be “reasonable” regulation. No right is absolute, and Antonin
Scalia’s majority Heller opinion explicitly recognized
some restrictions as appropriate. For example, bans on felons
owning guns, machine-gun regulations, and limits on concealed carry
are OK.
IT’S NOT HARD to see how this will get messy in a hurry. The logic
in Heller was simple — the Second Amendment protects
American individuals’ right to have civilian arms for lawful
purposes, so a complete ban on a major type of gun is
unconstitutional.
This solved the question at hand quite cleanly, but despite
mentioning a few exceptions, the opinion did not create a test for
assessing non-ban regulations.
When it comes to the Second Amendment, the Court might end up
using one of the “standards of review” it uses for other
constitutional questions, or it might come up with a new test.
Regardless, the goal will be to balance government safety concerns
against the right to keep and bear arms — the sort of subjective
judgment that legislatures are better suited to make.
And since four of the nine judges are already on record as viewing a complete ban as “reasonable,” a
defection from any of the five judges who ruled with the majority
on Heller will probably be enough to uphold any
gun-control law. Anti-gunners should see if they can find a
particularly wobbly, unprincipled justice among those five
(coughKennedycough), and target their appeals to him.
ENTER THE D.C. City Council, which recently passed 90-day “emergency” legislation, and plans
to work on (presumably quite similar) permanent legislation in
September.
Under the invalidated laws, residents could not register
handguns (meaning that almost always, residents could not own
handguns), and were required to store long guns in non-functioning
states. There was no written exception for self-defense with long
guns — in theory, if a resident experienced a break-in, and took
out his legally owned and -stored long gun for protection, he could
face penalties.
There are two important aspects to D.C. law today. One comprises
the new laws passed to comply with Heller.
Two are the laws, old and new, that Heller did not
address.
Let’s start with the Heller-compliance measures: The
city will finally grant handgun permits. It will retain storage
requirements, though (“unloaded and either disassembled or bound by
a trigger lock…or similar device”), adding a self-defense
exception.
In practice, this is a baby step, practically a nose-thumbing at
the notion of self-defense. It will give D.C. residents an extra
option for defending themselves, the handgun. And D.C. residents
rich enough to live in multi-story homes might, in late-night
break-ins, have time to put together or remove the trigger locks
from, and load, their weapons before the intruders make it
upstairs.
Maybe the greater availability of handguns to the law-abiding
will deter some crime. But in most cases, a handgun rendered
non-functional is a handgun that can’t be reached fast enough to
address an emergency. This is a powerful case for this measure’s
unconstitutionality.
BUT WHEN IT comes to the legal details, it’s closer to a coin toss.
In his opinion, Scalia made an issue of the long-gun law’s lack of
an exception for self-defense — if he objected to the storage
requirement in itself, he never said so.
It’s possible Scalia avoided the question simply because it
wasn’t before the court. At issue was whether the government could
ban self-defensive gun use, not what constitutes the over-burdening
of same.
Moving on to the laws that Heller didn’t address: The
registration requirement remains. There are several burdens to
handgun registration — applicants have to clear a background
check, pass vision and gun-safety tests, pay a fee, and submit the
gun for ballistics testing. “There are circumstances where it could
take months,” the police chief told the Washington Post.
Many of these steps are obnoxious, unlikely to reduce crime, and
clearly designed only to make gun ownership a hassle, but there’s
really no telling what the Supreme Court will do with them.
However, the courts are quite likely to crush the District’s
long-running ban on “machine guns,” not because it bans actual
machine guns, but because it inaccurately defines the term to include semi-automatic
weapons that can “shoot, or can be readily converted or restored to
shoot” more than 12 rounds.
Even semiautomatic pistols that come with 10-round magazines
typically accept higher-capacity clips, so this has much the same
effect the original handgun ban had. In fact, Dick Heller himself
was unable to register his handgun after winning in court
the right to do so (explicitly, not just in principle: “the
District must permit Heller to register his handgun”).
Part of the majority’s logic in Heller was that
handguns are commonly owned — “the quintessential self-defense
weapon.” Yes, many of these handguns are revolvers, but
semi-automatic pistols aren’t rare in any sense of the term, or any
less well-suited to self-defense.
What this all means is that it’s going to be a battle. D.C. has
stepped back into its role as a testing ground for various
gun-control measures. There are better things for the city to spend
money on than the defense of ineffective crime measures, but at
least the Second Amendment ball is at last rolling full tilt.
