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October 13, 2010

"The Standardless Second Amendment"

The title of this post is the title of this new Issue Brief authored by Tina Mehr and Adam Winkler coming from the American Constitution Society. At this link, here is how ACS describes the piece:

ACS is pleased to distribute “The Standardless Second Amendment,” by Tina Mehr, an Attorney Fellow at the Los Angeles County District Attorney’s Office, and Adam Winkler, a Professor of Law at the University of California Los Angeles.  In their issue brief, Ms. Mehr and Professor Winkler discuss the state of Second Amendment law following the Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago.  The authors observe that “[i]t is often said that there are 20,000 gun control laws in the United States,” and these two decisions, which “held that the Second Amendment guaranteed individuals a right to possess firearms for personal protection,” raise questions about the constitutionality of these laws.  Despite the Court’s two recent decisions, Ms. Mehr and Mr. Winkler argue that “Second Amendment doctrine is profoundly unsettled” and that “the Supreme Court failed to give [lower courts] adequate guidance on how to resolve gun control controversies.”  The authors discuss how courts have been resolving these disputes and the implications for future cases.  They conclude by contending that, “even in the absence of sufficient guidance about how to analyze Second Amendment controversies, the lower courts have consistently read Heller and McDonald to permit lawmakers wide latitude to protect public safety through gun laws.”

October 13, 2010 at 12:35 PM | Permalink


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Are there any studies that break down those 20,000 gun laws by type to determine how likely they are to be influenced by Heller?

The numerical estimate would suggest that about a fifth to a quarter of all local governments have gun control laws, and it is safe to assume that most of those laws fall into a handful of categories, some of which are not seriously affected by Heller (e.g. laws banning guns in certain sensitive public spaces like courts, legislative meeting rooms and airports), and some of which may face serious Heller challenges (discretionary concealed carry bans that effectively extend to the home and perhaps to everywhere beyond the home).

I have yet to see any statewide gun control law identified as a serious Heller target, and I would think that suits would be in progress already if any were a seriously promising target.

Posted by: ohwilleke | Oct 13, 2010 4:40:08 PM

The article was written by a couple of idealogues who can’t be bothered to read what the Court wrote.

The Supreme Court didn’t “fail[] to give [lower courts] adequate guidance on how to resolve gun control controversies.” It did what courts are supposed to do: answer the questions presented. To have done any more would have been to resolve hypothetical cases that have not yet been heard.

What’s more, “lower courts have consistently read Heller and McDonald to permit lawmakers wide latitude to protect public safety through gun laws” because that was precisely what Heller and McDonald said they should do.”

It really isn’t very complicated.

Posted by: Marc Shepherd | Oct 14, 2010 9:10:43 AM

Marc Shepherd --

Correct on all counts.

Posted by: Bill Otis | Oct 14, 2010 11:31:40 AM

Heller actually listed various regulations that it assumed would be upheld as reasonable, so it really went beyond the questions presented (a limited set of regulations) to submit a sort of advisory opinion on various regulations. I thought that a bit off myself, but perhaps it can be defended as guidelines on what type of regulations are reasonable. But, again, I think it should have left out the specifics, letting lower courts handle that sort of thing.

Posted by: Joe | Oct 14, 2010 12:52:27 PM

@Joe, I simply took those comments as drawing specific attention to what the Court was not ruling upon. This is, I think, I common enough feature of Supreme Court opinions — making clear the limited nature of its holding by stating explicitly what it was not ruling on.

I do see the argument that they tiptoed to the edge of issuing an advisory opinion on those matters, without quite jumping off. Still, those comments are technically dicta, not holdings. Without them, the Heller and McDonald opinions could have led to complete chaos. The fact that the lower courts have been interpreting them fairly consistency suggests that they got it right.

Posted by: Marc Shepherd | Oct 14, 2010 2:19:35 PM

@Marc, the comments basically gave a laundry list of acceptable gun regulations. I don't know how "common" it is for a ruling, especially one that sets new precedent to provide a list like this:

"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." This besides tossing in implications that concealed carry laws and many assault weapon bans might be okay too. Sure, once they make a list, the lower courts likely will take the hint, fairly consistency. I guess that is a value of advisory opinions?

Supreme Court rulings are supposed to be on the issues at hand, not provide advisory opinions on categories of laws not at issue. This is the value of case by case adjudication. When the 1A cases were first incorporated, the fact the cases didn't generally provide such a laundry list (and when it did so -- see, the establishment clause bus fares case -- arguably it covered too much ground at once) did not lead to "complete chaos."

Personally, fwiw, I think the SC should have sent back Heller itself for factual hearings once determining an individual right existed. Having the SC determine that a handgun is an "arm" as a matter of law seemed to me a bit dubious, though honestly I think it is one. But, so be it.

Posted by: Joe | Oct 15, 2010 12:21:20 AM

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