Assessing the Very Limited Impact of McDonald and Heller on Gun Regulations

When the Supreme Court for the first time recognized the existence of an individual right to bear arms in District of Columbia v. Heller in 2008, I warned that the decision might well end up giving gun owners very little new protection against regulation:

The Supreme Court may have endorsed an individual right under the Second Amendment to bear arms. But
the District of Columbia certainly isn’t leaping to implement that right…..

History shows that mere judicial recognition of a right doesn’t guarantee that the right will get meaningful protection. It is especially unlikely if the right is supported by jurists on only one side of the political spectrum. Judicially recognized rights also can get short shrift if the Supreme Court defines their scope narrowly.

To the delight of some and the distress of others, both these factors may limit the impact of the newly recognized individual right to bear arms.

Earlier this year, McDonald v. City of Chicago ruled that the Second Amendment applies to state governments as well as the feds. Nonetheless, it is far from clear that the ruling will have much effect. McDonald left intact Heller’s expansive list of “presumptively lawful regulatory measures,” which includes restrictions on the sale of guns, bans on carrying guns in “sensitive” locations, bans on ownership by felons (which in most states includes a wide range of people who have not been convicted of any violent crime), and others.

A recent ABA Journal [HT: Josh Blackman] article on lower court decisions applying McDonald and Heller seems to bear out my prediction:

Proponents hailed Heller and McDonald as setbacks for gun control advocates. They predicted a shift in gun policy throughout the country.

But so far it hasn’t happened that way. While there have been challenges throughout the country to local, state and federal gun laws, few have been successful.

In fact, critics of the decisions say the cases have failed to provide a concrete framework to help lower courts determine the constitutionality of challenged gun control laws…..

As I predicted, mere judicial recognition of the existence of a right doesn’t necessarily lead to meaningful protection for it. Such protection is particularly unlikely when a substantial part of the judiciary (most liberal judges) is hostile to the very idea that this right deserves protection at all.

This doesn’t mean that Heller and McDonald will be completely without effect. The two decisions do ensure invalidation of laws that completely forbid gun possession in the home or come very close to doing so. They thereby forestall any potential move towards total gun prohibition, though such an outcome was improbable anyway, given the political power of gun owners and the NRA. The rulings also have an important symbolic value.

Finally, it’s certainly possible that the Supreme Court will hear more cases in this field and eventually impose tougher scrutiny on gun laws. However, any such move seems unlikely in the near future. With the four liberal justices categorically opposed to Heller and McDonald in the first place, whatever protection gun rights get will track the lowest common denominator of what the five conservatives can agree on. It seems to me unlikely that all five will agree on any high level of scrutiny. Indeed, the list of exceptions in Heller is probably a roughly accurate barometer of the level of protection that can get five votes in today’s Court.

UPDATE: I suppose I should note the obvious point that lower court litigation over Heller and McDonald is far from over, and it’s still possible that some lower court judges will apply these decisions more aggressively than has happened to this point. But the dominant trend so far suggests that such cases are likely to be the exception rather than the rule.