freetrav | District of Columbia v. Heller - What It Is, and Isn't (Reply)

Today's decision from the United States Supreme Court in District of Columbia v. Heller is rightly being called significant, and even a landmark decision. However, contrary to some of the comments I've been hearing from friends in various forums, it is not the death knell for gun control. At best, it is the beginning of the end-game; more likely, it is a significant tactical victory, but the battle remains joined, and is far from over.

First, let's look at what the Court held in its opinion. This can be summed up in three statements:

The Second Article Amending the Constitution of the United States guarantees the protection of an individual right to own firearms.
The DC law banning the possession of handguns in the home is overturned as unConstitutional.
The DC law requiring any firearm not kept in a place of business to be non-functional (unloaded, and either disassembled or with trigger lock) is overturned as unConstituional.

These are indeed significant, as the Court has now established limits on gun laws in the District of Columbia. However, there are other statements about the decision that can be made:

The Court specifically stated that, based on the facts of Heller's complaint, the prayer for relief could be satisfied through the issuance of a license by the District of Columbia to Heller permitting him to keep a handgun in his home. Thus, permit laws are not prima facie an unConstitutional infringement on the right to keep and bear arms.
The Court also indicated that they are not overturning restrictions on possession in 'sensitive' locations such as schools or government buildings. Thus, such restrictions - which are being expanded as fast as legislatures can justify doing so - are also not prima facie unConstitutional.
The Court made no comment as to whether the Fourteenth Article Amending the Constitution of the United States incorporates the Second and extends its provisions to the several states. Thus, even laws similar to DC's in other US jurisdictions may not be prima facie unConstitutional under Federalism doctrine.
The Court does not set a standard for examining future cases - although it is stated in the decision that the home handgun ban in DC does not pass muster under any reasonable standard of scrutiny.
The decision was 5-4, along expected ideological lines (Justices Stevens, Breyer, Souter, and Ginsberg in dissent). This is troubling, as it implies the definite possibility that, should the decision be revisited after a Justice in the current majority leaves the Court, the holding of an individual right could well be overturned. The Court's doctrine of stare decisis weighs in against casually overturning the precedent established, but it is not an ironclad guarantee - otherwise such decisions as Plessy v. Fergusen would never have been overturned by later decisions such as Brown v. Topeka, KS, Board of Education.

Really, the only thing we can be sure of at this point is that lawyers who argue gun cases are gong to be making a lot of money in coming years, as various state and local laws are individually challenged and work their way through the system via appeal, cross-appeal, and reappeal. The precedent established by today's decision is important, but not broad enough to short-circuit such litigation. It is a blow to the gun-control advocacy groups, but it is far from fatal.

Edited 6/27/08 09:10 to add: Other analyses I'm seeing suggest that some of the ambiguities and non-addressed issues in the decision were to get the fifth vote, said to be from Justice Kennedy (who has been the swing vote in other cases). If this is in fact the case, it makes the closeness of the decision even more troubling.

Some further possible ramifications:

There is the distinct possibility that "Shall Issue" may become the law of the land - that is, if a permit-issuing authority wishes to deny a permit, they may have to show objective cause, such as felony conviction or mental illness, for the denial, and otherwise issue.
Similarly, laws requiring transport or storage unloaded or otherwise unusable may fail to pass Constitutional muster. In the Opinion, Justice Scalia characterized a gun that was not in usable condition as "a club".
The discussion of United States v. Miller in the Opinion, and the relevance of "common use in militia or military service" to the question of what weapons would be covered by the Second Article Amending the Constitution of the United States, points to the possibility that the National Firearms Act of 1934, the Gun Control Act of 1968, and subsequent legislation banning semi- and fully-automatic firearms and so-called "assault weapons" may not withstand Constitutional scrutiny.

In short, although the Court attempted to rule narrowly, as per longstanding practice, the ruling in District of Columbia v. Heller may well turn out to have broader and farther-reaching effects than may have been anticipated - but this will only be determined in future litigation.

Edited 6./28/08 18:20 to correct references to the case to the correct name of District of Columbia v. Heller.