Predicting the Impact of McDonald

The Supreme Court has now incorporated the Second Amendment against the states. But the impact of that decision may turn out to be fairly limited. In most states, there will be little if any change in the actual extent of gun regulation. The ideologically divided nature of the Court’s decision suggests that the legal status of the Second Amendment isn’t yet completely secure. That said, the decision will have a substantial practical impact in a few areas and it also represents a tremendous symbolic victory for gun rights advocates.

I. Limited Practical Impact.

On balance, I agree with scholars such as co-blogger Eugene Volokh and Jack Balkin who argue that McDonald will have only a limited practical effect. As Balkin puts it:

Complete bans on the use of handguns in the home for self-defense are likely to be held unconstitutional, as the Heller case suggested. But a wide range of other firearms regulations should be perfectly legal. The Supreme Court signaled as much in Heller and once again in McDonald.

The big difference between applying a constitutional right only against the federal government and applying it against state and local governments is that there are many more state and local regulations of firearms than federal regulations, and these regulations occur in many different varieties.

This increases the number of possible constitutional claims, and it also increases the opportunities for litigation. It does not, however, guarantee that Second Amendment rights will become too robust over time…

Federal courts tend to strike down mostly laws in outlier jurisdictions that are markedly different from the norm. That is what happened in the District of Columbia, and will likely happen in Chicago. More than 40 states already recognize an individual right to bear arms under their own constitutions. By and large, they have upheld most gun control laws under a loose standard of reasonableness. The federal courts will probably follow suit.

As I explained in this 2008 Legal Times article on Heller, Justice Scalia’s majority opinion in that case leaves numerous openings even for very broad gun control regulations:

Justice Antonin Scalia’s majority opinion in Heller firmly establishes the Court’s recognition of an individual right to bear arms. Yet it also outlines a large number of “presumptively lawful regulatory measures” restricting gun rights. These exceptions to the right to bear arms could potentially swallow the rule.

Most importantly, the presumptively valid “laws imposing conditions and qualifications on the commercial sale of arms” could easily be drafted in ways that make the purchase of firearms prohibitively difficult or expensive for most ordinary citizens. The exception for “prohibitions on the possession of firearms by felons and the mentally ill” could also be used to undermine the scope of Heller. Many states, as well as the federal government, define a wide variety of minor, nonviolent offenses as felonies.

The Scalia opinion seems to accept laws forbidding the carrying of firearms in “sensitive” locations such as schools
and government buildings. A government might define a large number of areas as “sensitive,” including, for example, entire neighborhoods with high crime rates….

Governments could also act to limit gun ownership by imposing prohibitively burdensome requirements on gun registration, a type of regulation not considered in Heller. In short, Heller potentially leaves a lot of room for legislators and lower courts to eviscerate the individual Second Amendment right that the Supreme Court has recognized.

McDonald does nothing to clarify or pare back this language from Heller. Presumably, therefore, Heller’s strictures on the limits of gun rights remain intact and will apply to state as well as federal regulation.

As Balkin points out, only a few areas have truly draconian gun bans similar to Chicago’s, so the impact of McDonald may well be confined to a small number of atypical locations. That said, it is important that complete gun bans such as Chicago’s are on their way out. Millions of people live in Chicago and a few other similar jurisdictions.

I think it’s also likely that courts will turn a skeptical eye on regulations that allow gun possession in theory but essentially ban it in practice (as the new post-Heller DC regulations do). The fate of such subterfuges is likely to be the most significant issue lower courts will have to consider in the short-term aftermath of McDonald.

II. The Impact of Ideological Division.

Both Heller and McDonald were closely divided 5-4 decisions where the Court split along ideological lines. In Heller, the four liberal justices indicated that they do not believe that the Second Amendment protects an individual right robust enough to invalidate even the most extreme forms of gun control. As I see it, it’s even more telling that in McDonald they argued that the Second Amendment should not restrict the states in any significant way even if Heller were correct as to the federal government.

As I argued in this article on the status of property rights, it is difficult to achieve strong protection for constitutional rights if such protection is supported by judges on only one side of the political spectrum. Where that is the case, protection of those rights will rest on narrow majorities that could easily be changed. Moreover, lower court judges belonging to the opposite party are likely to interpret Supreme Court decisions defining the right as narrowly as they can. In this case, if even one pro-Heller/McDonald justice is replaced by a liberal, both decisions could well be overruled or interpreted so narrowly as to be effectively meaningless.

The ideological division on the Court need not be permanent. Outside the judiciary, leading liberal constitutional law scholars such as Akhil Amar, Jack Balkin, and Sandy Levinson have defended the idea that the Second Amendment protects an important individual right enforceable against all levels of government. It’s possible that the next generation of liberal judges will be influenced by such views.

III. Could Heller and McDonald Actually Lead to More Gun Control Regulation?

Assuming Heller and McDonald survive, it’s possible that they might actually increase the amount of gun control regulation in the long run. As Eugene Volokh points out:

[S]ubstantive constitutional limits on government power can be regulation-enabling, not just regulation-frustrating. A non-absolute constitutional right to get an abortion, to speak, or to own guns can free people to vote for small burdens on the right with less concern that these small steps will lead to broader constraints.

Some of those who oppose relatively moderate gun control regulations do so out of fear that they will lead to much broader ones. If Heller and McDonald take that possibility off the table, yet do not ban moderate gun control measures themselves, the net result could be an increase in political support for the latter. I emphasize, however, that this is only a possible outcome. Many other factors will influence the future politics of gun control.