Civil and Human Rights

Few Ripples From Supreme Court Ruling on Guns


About nine months ago, the Supreme Court breathed new life into the Second Amendment, ruling for the first time that it protects an individual right to own guns. Since then, lower federal courts have decided more than 80 cases interpreting the decision, District of Columbia v. Heller, and it is now possible to make a preliminary assessment of its impact.

So far, Heller is firing blanks.

The courts have upheld federal laws banning gun ownership by people convicted of felonies and some misdemeanors, by illegal aliens and by drug addicts. They have upheld laws banning machine guns and sawed-off shotguns. They have upheld laws making it illegal to carry guns near schools or in post offices. And they have upheld laws concerning concealed and unregistered weapons.

“The Heller case is a landmark decision that has not changed very much at all,” said Adam Winkler, a law professor at the University of California, Los Angeles who keeps a running tally of decisions based on the case. “To date, the federal courts have not invalidated a single gun control law on the basis of the Second Amendment since Heller.”

Heller itself struck down parts of the District of Columbia’s gun control law, the strictest in the nation. The case was brought by law-abiding people who wanted to keep guns in their homes for self-defense. The cases that have followed it tend to concern more focused laws and less attractive gun owners.

Harvey C. Jackson IV, for instance, argued that he had a constitutional right to carry a gun while selling drugs in a dangerous neighborhood in East St. Louis, Ill. The federal appeals court in Chicago was unimpressed.

“The Constitution does not give anyone the right to be armed while committing a felony,” Chief Judge Frank H. Easterbrook wrote last month in Mr. Jackson’s case. Professor Winkler summarized the impact of Heller in an article to be published in The U.C.L.A. Law Review in June. “So far,” he wrote, “the only real change from Heller is that gun owners have to pay higher legal fees to find out that they lose.”

There is one arguable exception to this trend. Two judges have struck down a part of the Adam Walsh Child Protection and Safety Act, named after the murdered son of John Walsh, the host of “America’s Most Wanted.” The act says that people accused of child pornography offenses must be prohibited from possessing guns while they await trial.

That provision may well have been unconstitutional as a matter of due process even before Heller, as it seems to impose a punishment before conviction. But two courts have struck down the provision based partly on the fact that a fundamental constitutional right is at stake.

“A year ago, I might well have taken for granted the authority of Congress to require that a person charged with a crime be prohibited from possessing a firearm,” Magistrate Judge James C. Francis IV of the Federal District Court in Manhattan wrote in December. Heller changed that, he said.

“The right to possess a firearm is constitutionally protected,” Judge Francis wrote. “There is no basis for categorically depriving persons who are merely accused of certain crimes of the right to legal possession of a firearm.”

The cases discussed so far all concerned federal laws, and there is no question that the Second Amendment applies to the federal government. The great open question after Heller is whether the Second Amendment also applies to the states or, in the legal jargon, whether the amendment is incorporated against them.

The Supreme Court has said that most but not all of the protections of the Bill of Rights are incorporated by the Fourteenth Amendment, one of the post-Civil War amendments.

The consensus among most legal scholars is that incorporation of the Second Amendment is likely. True, the Supreme Court has said in some older cases that the Second Amendment only applies to the federal government. But a footnote in Heller cast doubt on those decisions. For now, lower courts probably have to follow the older decisions until the Supreme Court says otherwise.

There are cases in the pipeline, notably in the federal appeals courts in Chicago and San Francisco, that could give the court an opportunity to answer the question in its next term.

Even if the court applies the amendment to the states, though, little may change. Most state constitutions already protect an individual right to bear arms, and federal protection, depending on its form, could well be merely duplicative.

But some liberal lawyers and law professors sense an opportunity, and they have urged courts to incorporate the Second Amendment in a novel way, one that might help liberal arguments for protecting rights not specifically mentioned in the Constitution. Abortion and gay rights come to mind.

In a supporting brief filed in the Chicago case, lawyers for the Constitutional Accountability Center, a liberal group, urged the court to bypass the usual way that amendments are applied to the states, through the Fourteenth Amendment’s due process clause. Using that clause to guarantee fundamental rights has always seemed a little curious, as “due process” would seem to protect only fair procedures and not substance

Another possibility, and the one urged by the brief, is the Fourteenth Amendment’s “privileges and immunities” clause, which says that “no state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States.” The virtues of that clause are that it makes sense by its terms and that there is some evidence that its framers specifically wanted it to apply to allow freed slaves to have guns to defend themselves.

All of this is awfully technical, of course, and it may have no practical consequences at all.

“My own bet,” said Sanford Levinson, a law professor at the University of Texas, “is that Heller will more likely than not turn out to be of no significance to anyone but constitutional theorists.”


More from Civil and Human Rights