Constitutional Law

The New Second Amendment: A Bark Worse Than Its Right

by Adam Winkler, Professor of Law, UCLA School of Law

In June, 2008, the U.S. Supreme Court issued a landmark ruling on the Second Amendment right to bear arms, D.C. v. Heller. For over 70 years, the federal courts had read that amendment to protect only a state’s right to organize militias, like the National Guard. In a long-awaited victory for the gun rights movement, the Court in Heller held that the Second Amendment protected an individual’s right to own guns for personal self-defense. 

So far, the victory hasn’t turned out exactly as the gun rights folks had hoped.

As many legal scholars predicted, the Supreme Court’s decision led to a tidal wave of Second Amendment challenges to gun control. Every person charged with a gun crime saw Heller as a Get Out of Jail Free Card. 

To date, the lower federal courts have ruled in over 60 different cases on the constitutionality of a wide variety of gun control laws. There have been suits against laws banning possession of firearms by felons, drug addicts, illegal aliens, and individuals convicted of domestic violence misdemeanors.   The courts have ruled on the constitutionality of laws prohibiting particular types of weapons, including sawed-off shotguns and machine guns, in addition to specific weapons attachments. Defendants have challenged laws barring guns in school zone and post offices, and laws outlawing “straw” purchases, the carrying a concealed weapon, possession of an unregistered firearm, and particular types of ammunition. The courts have upheld every one of these laws. 

Since Heller, it’s Gun Control: 60, Individual Right: 0.

Before the Supreme Court’s decision, none of the numerous challenges to gun control laws raised in recent months would have had any hope of winning. Now, with a revolutionary ruling recognizing a renewed individual right to keep and bear arms, they still have no hope of winning. 

About the only real change from Heller so far is that gun owners have to pay higher legal fees to find out they lose.   

The basis for most of these lower court rulings upholding gun control was a paragraph near the end of the Supreme Court’s decision that, at the time, seemed like a throwaway. The Supreme Court wrote that “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 on the commercial sale of arms.” 

What gun rights advocates are discovering is that the vast majority of gun control laws fit within these categories.

“I would have preferred that that not have been there,” said Robert Levy about the list of exceptions. Levy, executive director of the CATO Institute, which funded the Heller litigation, believes that paragraph in the Court’s opinion “created more confusion than light.” 

But to a die-hard gun rights advocate, the problem is exactly the opposite: the paragraph shed too much light. It revealed that the Supreme Court Justices believe that almost all gun control measures on the books today are perfectly lawful – a message that hasn’t been lost on the lower courts.

Hardliners in the gun rights community cannot help but be disappointed with their long-awaited triumph.

Winkler’s commentary also appears at The Huffington Post. For more analysis of the high court ruling in Heller, see Winkler’s June 26 ACSBlog post here.

Full post as published by ACS Blog on January 05, 2009 (boomark / email).