Last year in District of Columbia v. Heller, the Supreme Court declared that the 2nd Amendment provided for an individual, rather than collective, right to bear arms.  That left open the question of whether the Amendment applied to the states, DC being Federal territory.  On Monday, lawyers for four Chicagoans filed a brief arguing that the Amendment did indeed apply to both state and local laws, and that Chicago’s gun laws — which ban weapons almost as effectively and completely as the DC laws struck down in Heller – run afoul of an individual’s constitutional rights.

A battle for gun rights was also brewing on the lakefront here in Cleveland, and last week the 8th District held upheld the city’s firearms laws in Cleveland v. Ohio.  That might prove to be merely the last gasp of gun control proponents, though.

At issue in Cleveland was not the constitutionality of the regulations themselves, but their continued vitality in the face of RC 9.68, which provides “uniform” statewide laws on guns, and the Ohio Supreme Court’s decision in Ohioans for Concealed Carry v. Clyde that the statute didn’t violate the Home Rule provisions of the Ohio Constitution.  Clyde struck down a city ordinance which prohibited the carrying of weapons in city parks, even if the person was licensed to carry one under the new state concealed carry statutes enacted a few years before 9.68.   

The law on home rule, like sovereign immunity, borders on something you’d find in a Monty Python skit:  there’s a three-step analysis, the second of which involves a four-part test, and then… well, you get the idea.  Given the diminishing deference to home rule determinations, as evinced Clyde and last year’s decision in Lima v. State, upholding a state law banning municipalities from imposing residency restrictions on its employees, the 8th District’s decision is going to have a tough road.   The court hung its hat on the contention that 9.68 left unregulated large swatches of firearms law — the discharge, possession and sale of assault weapons, open carry of firearms — and thus was not a “general law” intended to override municipal ordinances.  Actually, it wasn’t the “court” which asserted that, it was the author of the court’s opinion; both of the other judges merely concurred in the judgment.

That might be enough, but I doubt it; while Clyde was a 4-3 decision, Moyer was one of the dissenters, and he’ll be gone after next year, when the Cleveland decision is likely to be addressed.  What’s more, the Supreme Court’s impending decision on the applicability of the 2nd Amendment to state and local laws will have some effect on the political climate, if not the legal climate, toward gun regulations.

And probably one adverse to gun control proponents.  As I’d mentioned before, the buildup to Heller was constitutionally unprecedented.  For the better part of two centuries, there was virtually no dispute among legal scholars that the 2nd Amendment provided only a collective right to bear arms, conjunctive with the militia.  About ten to fifteen years ago, even liberals like Lawrence Tribe took another look at the subject and decided that the Framers had intended to protect an individual right.  By the time Heller was decided, all nine justices agreed with that point, disagreeing only on whether the District’s laws ran afoul of that, and what the proper remedy was.  There is no parallel for this rapid about-face in constitutional theory; it is as if everybody suddenly decided that John Marshall got it wrong back in 1803, and the Supreme Court really doesn’t have the power to declare Congressional laws unconstitutional.

Heller’s impact is limited to the District of Columbia, so it hasn’t engendered much debate outside the legal community on what regulations can survive an individual right analysis.  The Chicago case does present that issue squarely, but again the law goes far beyond Cleveland’s, and comes close to an outright ban on possession of most guns.

Still, as that noted legal sage Bob Dylan put it, you don’t need to be a weatherman to know which way the wind’s blowing.  While mass shootings like Columbine used to cause an uptick in public support for stronger gun control legislation, that support has declined despite recent events like the Virginia Tech massacre; a CNN poll last April showed that only 39% of Americans supported stricter gun control laws, down from 54% in 2001 and 50% just two years earlier.  More ominously, while support among Democrats remained steadfast, it nosedived among independents:  “Half of all independents supported stricter gun laws in 2007; now only a third of them do.”  That may be one reason that despite the Democrats winning the presidency and both Houses of Congress by large margins last year, there’s been virtually no effort to revive the the assault-weapon ban or pass any other meaningful gun control legislation.

It’s hard to find much fault with this trend; the empirical case for gun control was always hampered by the fact that the cities which practiced it most stringently — Washington and Chicago, for example — usually dominated the top rankings in homicide rates.   (Although New York City’s crime rates plunged precipitously after police initiated, among other things, “gun sweeps” to get firearms off the street.)  Gun rights supporters have argued that the opposite is true:  that wider weapons usage, as provided by “concealed carry” laws, will actually reduce crime.  The evidence for this is not nearly as credible as supporters would like to believe; the National Academy of Science concluded in 2004 that “despite a large body of research, the committee found no credible evidence that the passage of right-to-carry laws decreases or increases violent crime.”  Still, it should be remembered that liberals widely predicted that such laws would lead to an increase in crime, with simple road rage incidents escalating into shootouts, and none of that happened, either.

I haven’t shot a gun since I was 15, and wouldn’t dream of owning one.  I used to be a strong supporter of gun control, but concluded years ago that that issue is for liberals what capital punishment is for conservatives:  something which commands a great deal of attention when the topic turns to crime control, but which actually has virtually no effect on crime.