So what's McDonald mean?
Two years ago, when the Supreme Court decided in District of Columbia v. Heller that the 2nd Amendment granted an individual right to bear arms, rather than the collective right that virtually every court decision prior to that had recognized, I made numerous predictions about the significant impact the decision was going to have. And, as I recounted here, I wasn't the only one. Unfortunately, I proved as prescient as Irving Fisher.
Now that the Supreme Court has extended Heller, and the 2nd Amendment, to the states in last week's decision in McDonald v. City of Chicago, does that change anything?
It might. Gun restrictions come in two broad flavors: who can own them, and just about everything else -- what kind of gun can be owned, how they can be acquired, how many can be acquired, how they can be carried, whether they have to be registered, and so on. The heavy lifting in this area, especially on the latter aspect, is done by state and local governments. In fact, one of the reasons that Heller has had such limited impact is that Federal law deals mostly with disqualifying certain people from having guns -- felons, and those convicted of domestic violence -- or requiring background checks for purchase. Scalia took pains to note in Heller 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 and qualifications on the commercial sale of arms," and Alito echoed that in McDonald.
But there are an awful lot of issues beyond that, as perhaps demonstrated by the law Chicago recently approved to replace the one struck down by the Court in McDonald. It limits purchases of handguns to one a month, and requires owners to register the guns, and obtain a permit which mandates four hours of classroom training and one hour of practice on a firing range. (The latter requirement is particularly interesting, in light of the fact that another Chicago ordinance prohibits firing ranges within the city, except those used by police.) The new ordinance also defines "home" as narrowly as possible: it excludes porches, driveways, and garages. It could've been worse: at the last minute, a proposal was withdrawn which would have required owners who have children under 18 in the house to keep the gun locked up and with ammunition in a separate place.
The arguments over the constitutionality of the revised ordinance, I think, focus too narrowly. The Court in Heller and McDonald established that there's a constitutional right to bear arms in self defense which invalidates an ordinance banning gun possession in one's own home, but those are two separate propositions that do not necessarily have to be linked. What about a general right to self-defense? Some 40 states have passed "concealed-carry" laws, and while there's a lot of dispute as to the claims that those laws have reduced crime, there's no dispute that gun-control proponents' predictions that such laws would lead to regular "Wild West shootouts" hasn't come to pass, either. Why should a person's right to self-defense be limited to the home, where he is arguably at his safest against criminal aggressions anyway? What about protection on the street, where he is at greater risk? And even this only touches at the enormity of the task of gauging the constitutionality of the myriad of gun laws throughout the country. What about limits on age -- 18-to-21 year olds are usually prohibited from buying guns -- or prohibitions on particular types of weapons, like "assault" weapons or "unsafe" handguns?
Part of the problem is that in McDonald, as in Heller, the Court gave no clue as to what standard was to be used in determining the constitutionality of a particular ordinance. Most observers doubt that the Court would impose the same type of "strict scrutiny" test applicable for, say, First Amendment violations, and will probably opt for the "intermediate scrutiny" typical in sex discrimination cases. But that probably raises more questions than it answers. Scrutiny simply involves the question presented in any civilized society: when does the individual's right to liberty give way to the society's need for order? Obviously, in a democratic society, we strike that balance much closer to the liberty end of the spectrum, but even in First Amendment cases, it's not all the way at the end: there can be a governmental interest so "compelling" that it allows infringement.
That same issue will be present in gun rights cases, and very well be much more complex to sort out, especially if a lesser level of scrutiny is involved. Does the government's interest in preventing children from gaining access to weapons allow it to require a gun-owner to keep his weapons locked up, or does that unduly interfere with the owner's rights? And will that vary, depending on locality? One of the dissenters' arguments in McDonald was that guns presented a much different problem in rural areas than they do in urban centers, and thus local governments were best capable of sorting out what was needed. Of course, determining whether the interest is sufficiently compelling might require wading through a lot of data to determine if a particular restriction is effective, a task for which the courts are particularly ill-suited. Especially in this area: the difficulties of doing that are demonstrated by the fact that while gun-rights proponents gleefully point to the fact that the strict gun-control laws in Washington, D.C. and Chicago haven't kept them from ranking among the worst cities for crime, New York City also has severe gun control laws, and its crime rate ranks among the best.
What's more, all this isn't to suggest that it's Game Over for claims that flat prohibitions on certain people being allowed to carry guns is inevitably going to pass constitutional muster. Earlier this year, the 1st District affirmed a conviction of having a weapon under a disability, where the disability was a minor misdemeanor marijuana conviction. That certainly would be a worthwhile McDonald challenge.
I think McDonald is going to prompt much more litigation than Heller did. It remains to be seen if the courts are more open to gun rights claims than they were under Heller.