The Supreme Court’s decision in McDonald v. Chicago came in this week, with Justice Samuel Alito writing for a plurality that the Second Amendment right to own guns applies to all levels of government—in the legal lingo, that the right is “incorporated” against the states via the 14th Amendment.
Justice Clarence Thomas also elected to reverse the 7th Circuit Court of Appeals' decision that the Chicago and Oak Park, Illinois, laws that essentially banned handgun use in the home couldn’t be challenged on Second Amendment grounds. But he did so in a more radical way. Indeed, Thomas's concurrence was radical in both senses of the word. It struck to the root of the original meaning of the 14th Amendment, by declaring that its Privileges or Immunities Clause was the proper means to apply weapon possession rights to the states, rather than the less textually or originalist-appropriate Due Process Clause that the Alito opinion relied on.
Thomas was also radical in the sense that a victory for his pro-Privileges or Immunities Clause viewpoint would represent an extreme change in American jurisprudence. (In their respective dissents, Justice John Paul Stevens and Justice Stephen Breyer essentially denied that 2008’s Heller decision ever happened, maintaining that the “right” in the Second Amendment could be balanced and experimented out of existence by states and localities in a manner no other constitutional right could be.)
Now, America faces the aftermath of the dual jurisprudential revolutions that the winning legal team in McDonald, led by Heller lawyer Alan Gura, tried to create.
The first such revolution is the application of the Second Amendment’s protected right—at least to have commonly used weapons in the home for self-defense—to actions of state and local governments.
In theory, this victory for Gura and his lead plaintiff, Chicago’s own Otis McDonald, a 76-year-old black grandfather, leaves a variety of laws newly vulnerable to legal challenge from either civil rights groups dedicated to defending Second Amendment rights (such as the Second Amendment Foundation, which launched McDonald, and the larger and better-known National Rifle Association) or criminals convicted under gun laws that might no longer pass constitutional muster.
To the surprise of some, the NRA did not have lawsuits loaded and ready to fire the day McDonald came down. Two days later, as I write this, they still have nothing in the works. NRA public affairs director Andrew Arulanandam would not say whether any particular NRA-sponsored legal challenges to state or local gun regulations are being planned, but did hint that his organization might be prepared to further challenge the city of Chicago in court (the NRA had also filed a suit challenging the same laws that McDonald overturned) if it does not properly comply with the implications of the McDonald victory. (Technically, the case is returned to a lower court for reconsideration, with the guidance that the Second Amendment right recognized in Heller does bind Chicago and Oak Park.)
A rematch with Chicago might be needed to beat them into submission, since Chicago Mayor Richard Daley is proposing to push the edges of permissible gun regulations, with one of his attorneys telling the Chicago Tribune that the city is “trying to figure out how far we can go and survive a (legal) challenge, because we know it will be challenged.” Among the elements of Daley’s proposals are a one-gun-per-owner rule, registration, legislated safety training, liability insurance purchase, and maybe even a ban on gun shops in the city.
Alan Gottlieb, head of the Second Amendment Foundation (SAF), tells me he also remains ready to fight it out again with Chicago in court if the city's new regulations still violate the Second Amendment. For their part, the SAF has filed one new post-McDonald suit against North Carolina, charging that its law completely banning gun or ammo possession outside the home during a declared state of emergency violates the Second Amendment.
Other SAF suits are planned, though Gottlieb is not prepared to discuss specifics until they’ve been filed. And two pre-McDonald California suits by the SAF that had been held up pending a McDonald decision should be moving forward again. Those suits challenge the state’s register of permitted handgun types and models (Pena v. Cid), and Sacramento and Yalo counties’ methods for issuing carry permits for weapons (Sykes v. McGinness).
As Alito’s decision states, “incorporation does not imperil every law regulating firearms.” Similarly, Justice Antonin Scalia’s Heller decision famously stated:
The Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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.
Thus, it’s possible that McDonald won’t trigger serious damage against many existing laws. As UCLA law professor Adam Winkler observed at SCOTUSBlog, “McDonald could still have a significant effect on gun control if the law of the Second Amendment were radically different from the state constitutional law doctrines relating to the right to keep and bear arms. So far, however, the two regimes are mostly the same.” This means, Winkler writes, that “Since Heller, there have been approximately two hundred federal court decisions on the constitutionality of gun control under the Second Amendment. Nearly every challenged gun law has survived….Other than a complete ban on handguns—which, apart from Chicago and its suburbs, no state or city has—gun control remains constitutionality permissible.”
What sort of state-level gun laws might be vulnerable post-McDonald? Winkler offered up “New York City’s extreme and discriminatory permitting scheme and California’s refusal to approve certain guns designed for left-handed shooters” as possibly on the way out. Nelson Lund of George Mason University’s School of Law thinks that barring any ability to carry weapons in public shouldn’t hold up any longer, though hardly any states still try to do that.
Heller and McDonald lawyer Gura says that “laws that arbitrarily deny law-abiding people the right to carry guns in self-defense and laws that ban weapons for arbitrary and irrational reasons, those are going to be in danger.” UCLA law professor Eugene Volokh specifically points to laws that bar people between the ages of 18-20 from owning guns as likely to fall. He also says laws that bar people who have been under restraining orders from owning guns, if those orders were imposed through unrigorous procedures, could also be vulnerable. But Volokh argues that overexcited gun rights activists need to remember that not every restriction on a right rises to the level of a constitutionally prohibited infringement of it.
Moritz College law professor Douglas Berman points out that “there is so much pro-reasonable regulation dicta in Heller and echoed in McDonald that a court looking for a way to justify a gun regulation that is not a complete ban can come up with a basis.” This means as well that if the judges in question don’t want to justify the regulation, they might not do so. Given the ideological range of judges, this will surely lead to more circuit splits on gun-related issues, and give future Supreme Courts a chance to reshape Second Amendment law once again.
Robyn Thomas of Legal Community Against Violence—keeping her chin up in a media conference call the afternoon the McDonald decision came down—said that while she certainly expects a “rash of frivolous lawsuits” from gun rights defenders, she is confident that “the vast majority of existing [gun] regulations should be upheld in the wake of McDonald.” She may well be right.
As for the Privileges or Immunities Clause, it was both a sad and happy day, though most of the enthusiastic intellectual partisans for a revival of the clause have been squeezing every bit of encouragement they can out of Thomas’ concurrence. No justice, after all, said anything in full-blooded defense of the awful Slaughterhouse Cases, the 1873 precedent that neutered the Privileges or Immunities Clause. Mostly, the non-Thomas opinions just ignored the matter.
Ilya Somin of the Cato Institute offered, I think, the more sober and most likely correct take:
Josh Blackman…argu[es] that the plurality opinion does not preclude reconsideration of the Privileges or Immunities issue at a future time. [But] the plurality opinion’s reasons for not applying the P or I Clause in McDonald—precedent and vagueness—apply just as strongly to any reasonably conceivable future case as to this one.
Josh correctly notes that “vagueness and precedent have not stopped the Supreme Court before. In fact, the Court routinely deals with vagaries in, and routinely overrules long-standing precedents, when they want to.” He suggests that these issues will not be “a major obstacle” to the revival of P or I “if five votes want it.” I agree with this. But the plurality opinion’s reliance on the precedent and vagueness arguments is a strong indication that we are nowhere near having five votes that “want it.” In the meantime, the plurality’s holding will be an important obstacle to P or I claims in the lower courts.
That said, the eight justices who are not Clarence Thomas won't constitute the Supreme Court forever, and revolutions in American jurisprudence can and do happen. Clark Neily, Robert McNamara, and Steve Simpson of the Institute for Justice, all Privileges or Immunities Clause enthusiasts, offered up examples of how non-dominant, but well-thought-out Supreme Court concurrences and dissents laid the roots for later ruling doctrines. One such example is Justice Robert Jackson's approach to executive power in his concurrence in Youngstown Sheet and Tube v. Sawyer (1952); another is Justice Oliver Wendell Holmes' dissent in Abrams v. U.S. (1919), which shaped a more serious consideration of the First Amendment in later cases.
With the promise of reviving the Privileges or Immunities Clause left unfulfilled, perhaps McDonald isn’t so revolutionary. Perhaps it is merely the final cementing of a middle-of-the-road consensus about guns that had been solidifying since the last wave of strong gun control regulations in the mid-1990s, the same wave that many Democrats think hurt their party in the 1994 and 2000 elections.
With shall-issue carry laws sweeping the nation over the past 25 years with no commensurate public mayhem, and with strong gun prohibitions largely absent from the national political stage, a basic understanding of a limited right to own guns rules the republic. No doubt, there are committed partisans for a “what part of ‘shall not be infringed’ don’t you understand?” stance, as well as dedicated keep-guns-out-of-everyone’s-hands warriors.
But both sides are fighting a war as relevant as the Crimean to most Americans. No guns are being pried out of anyone’s cold, dead hands. Still, it's worth remembering that while alcohol prohibition is over, that doesn’t mean it isn’t a highly regulated pain-in-the-ass trying to run a bar, or that one’s access to booze isn’t highly circumscribed in various localities. That’s also the likely future for guns in a post-McDonald America where total prohibition is no longer an option.