Gun Control Can Survive the Supreme Court
I have to agree - even with the new demand for controls in the wake of the Newtown Massacre the only limits and regulations that possibly can pass will be minor ones that can also withstand the scrutiny of the Supremes.
It’s a sign of the legalization of American politics that activists worry about being thwarted by the Supreme Court even before they’ve managed to pass anything: Although they haven’t yet squeezed any new regulations through Congress or the state legislatures, gun-control advocates already fear that the Supreme Court will invalidate whatever progress they achieve.
They should stop sweating. Despite its turn to the right on gun control, the Supreme Court should almost certainly uphold any of the new regulations that have a chance of being enacted, according to the logic of its decisions in District of Columbia v. Heller and McDonald v. Chicago. Both liberal and conservative judges, from Justice John Paul Stevens on the left to Judges Richard Posner and J. Harvie Wilkinson on the right, denounced the decisions when they were handed down. But both decisions were relatively narrow, prohibiting states from imposing total bans on the firearms in the home. They shouldn’t be read to threaten the kinds of regulations that states and the federal government are currently debating—including an effective federal database for permit holders. The problem with the constitutional debate over guns, in other words, isn’t the Supreme Court’s Second Amendment decisions but an over-reading of them by a handful of lower court judges—mostly notably, Posner himself.
Heller and McDonald struck down the two most restrictive gun regulations in the country—Chicago and D.C.’s total bans on gun possession in the home. No other state or municipality had similarly sweeping bans on private gun possession, and in this sense, the Court was playing a familiar role of bringing state and local outliers in line with a national consensus. Since the decisions came down, there have been hundreds of civil and criminal challenges to gun control laws, and the vast majority of them have been unsuccessful. Unfortunately, a few lower courts have seized on language in Heller and McDonald to strike down state laws that forbid felons from possessing firearms, for example, or that require applicants for concealed carry permits to show a “good and substantial reason.”