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Supreme Court and other senior judges have made a number of statements on either side of the debate. A significant lower court opinion came recently from Judge Posner in Chicago. On December 11, days before the Newtown slaughter, Posner struck down Illinois’ ban on carrying a “ready to use” gun in public. Posner’s opinion said little about the text of the Second Amendment or whether its authors may have intended the right to keep and bear arms to apply as expansively outside the home as inside it. He instead discussed whether or not gun control laws are effective, concluding that “the empirical literature on the effects of allowing the carriage of guns in public fails to establish a pragmatic defense of the Illinois law.” Posner went on to point out that ‘’the Supreme Court made clear in District of Columbia v. Heller that it wasn’t going to make the right to bear arms depend on casualty counts.” In fact, however, the Supreme Court should almost certainly uphold any of the new regulations that have a chance of being enacted, if it keeps to the track laid down in Heller and in McDonald v. Chicago. Both decisions were relatively narrow, prohibiting Chicago and D.C.’s from imposing total bans on the firearms in the home. Heller and McDonald struck down the two most restrictive gun regulations in the country-- total bans on gun possession in the home. No other state or municipality had similarly sweeping bans on private gun possession. The Court was bringing state and local laws into line with a national consensus. Since then, there have been hundreds of civil and criminal challenges to gun control laws, but the vast majority of them have been unsuccessful. Heller and McDonald do not threaten the kinds of regulations that states and the federal government are currently debating, such as an effective federal database for permit holders. The problem with the constitutional debate over guns is not the Supreme Court’s Second Amendment decisions but an overreading of them by a handful of lower court judges 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.” Although the Supreme Court focused on the right to keep arms in the home, Posner in his recent judgment read this right broadly rather than narrowly. “To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald,” he wrote. “It is not a property right.’’ Posner went on to claim that the Second Amendment applied just as expansively outside the home as inside it, without indicating what the limits of the right might be. “The interest in self-protection is as great outside as inside the home.” In fact the text of the Second Amendment, and the Supreme Court decisions forbid only total bans on the right to keep arms in the home or to bear them outside – bans that no legislature except for Illinois and the District of Columbia have passed. Contrast Posner’s opinion with those of other appellate courts to consider the question of whether and to what extent Second Amendment rights apply outside the home. Judge J. Harvie Wilkinson III, a conservative critic of the Supreme Court’s gun decisions, is, unlike Posner, a consistent advocate of judicial restraint. This is the idea that courts should generally defer to legislatures and decide cases narrowly rather than broadly. In refusing to decide whether the Supreme Court’s recognition of an individual right to bear arms should apply outside the home, Wilkinson wrote the following in March 2011: ‘’This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights. It is not farfetched to think the Heller Court wished to leave open the possibility that such a danger would rise exponentially as one moved the right from the home to the public square. If ever there was an occasion for restraint, this would seem to be it.’’ In a similar spirit of caution and restraint, the U.S. Court of Appeals for the Second Circuit, in August 2011, upheld a New York law requiring people applying for a concealed carry permit to show “proper cause.” The Court
stressed that, “unlike the situation in Heller where ‘[f]ew laws in the history of our Nation have come close’ to D.C.’s total ban on usable handguns in the home, New York’s restriction on firearm possession in public has a number of close and longstanding cousins.” The Second Circuit stressed that even if the right to keep and bear arms applies outside the home (as the plain text of the Second Amendment suggests that it may), there is a long history of states regulating the right to carry concealed weapons. Laws restricting concealed carry permits to those who can show a special need to have a gun date back to the 1920s, when they were drafted by the NRA, which used to support reasonable gun regulations. In other words, as the Second Circuit concluded, the text and history of the Second Amendment suggest there is a limited right not only to keep a gun in the home but to bear it in public. But the Illinois ban is exceptional. Lower courts have been systematically upholding less sweeping regulations, and should uphold all of the regulations that are being debated in the wake of the Newtown shooting. These include laws limiting permits to carry concealed weapons to those who can show an individual need for a firearm, and universal background checks to ensure that felons and the mentally ill cannot get access to guns. The hardest constitutional question would be an assault weapons ban, but the Court would likely uphold such a ban too because although assault weapons are commonplace in America they are not commonly used for self-defense. As for a federal registry of gun transactions, an effective federal database that made it possible for law enforcement officers to access the names of permit holders would be the kind of reasonable regulation that the Second Amendment allows. In a little-noted interview with NPR legal correspondent Nina Totenberg in the conservative Washington Examiner, Supreme Court judge Antonin Scalia signaled that the Court is ready to rule further on gun control, if the new laws being debated in Congress reach the statute book. Thus the Court may soon settle the types of weapons that can be owned.
Scalia’s landmark decision in Heller suggested that the Constitution allows limits on what guns Americans can own. But the only example he has offered so far is a shoulder-launched rocket that would bring down jets. "There are doubtless limits (on gun rights), but what they are, we will see," Scalia said. Asked if the Second Amendment's right to bear arms is as unequivocal as the First Amendment's right to free speech, Scalia said, "We're going to find out, aren't we?" -- an indication he expects the court to hear a gun rights case in the near future. Thus the Supreme Court’s Heller and McDonald opinions have played a constructive role in the framing the current gun control debate -- prohibiting complete bans on the right to keep and bear arms but allowing sensible regulations. The Court has not outrun public opinion and future rulings are likely to be generally accepted despite the noisy exaggeration of interest groups and concerned individuals.
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