Despite the sweeping language of a 2008 Supreme Court decision that struck down parts of the District of Columbia’s strict gun-control law, the decision appears perfectly consistent with many of the policy options being discussed after the shootings in Newtown, Conn.
Legal experts say the decision in the case, District of Columbia v. Heller, has been of mainly symbolic importance so far. There have been more than 500 challenges to gun laws and gun prosecutions since Heller was decided, and vanishingly few of them have succeeded.
The courts have upheld federal laws banning gun ownership by people convicted of felonies and some misdemeanors, by illegal immigrants and by drug addicts. They have upheld laws making it illegal to carry guns near schools or in post offices. They have upheld laws concerning unregistered weapons. And they have upheld laws banning machine guns and sawed-off shotguns.
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Nor does Heller impose any major hurdles to many of the most common legislative proposals in the wake of the Newtown shootings, said Adam Winkler, a law professor at the University of California, Los Angeles, and the author of “Gunfight: The Battle Over the Right to Bear Arms in America.” Among the responses that Heller allows, he said, are better background checks, enhanced mental-health reporting and a ban on high-capacity ammunition clips.
There is one major possible exception to the trend, and it is quite fresh. Last week, a divided three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, struck down an Illinois law that banned carrying loaded guns in public. Judge Richard Posner, writing for the majority, said the ruling was required by the Heller decision. The Heller case, decided by a 5-4 vote, struck down a ban on handguns kept in the home for self-defense, saying it violated the Second Amendment.
After the shootings Friday in Newtown, which killed 20 children and seven adults before the gunman took his own life, policymakers — mostly Democrats — have called for tougher gun laws. Of the 12 deadliest mass shootings in U.S. history, six have occurred since 2007. The proposed measures include bans on some kinds of weapons and ammunition magazines, more sharing of information among government agencies, and an expansion of the settings in which background checks are required. In California, Democratic lawmakers are seeking to regulate ammunition sales more tightly.
The main obstacle to the passage of such measures is likely to be politics, not constitutional law, scholars say.
“We are aware of the problem of handgun violence in this country,” Justice Antonin Scalia wrote for the majority in the Heller decision. “But,” he added, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”
Still, the decision also contained a long list of laws and regulations that would, the court said, be unaffected. Among them were “laws forbidding the carrying of firearms in sensitive places such as schools.”
“Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill,” Scalia wrote. Government buildings in general could still ban guns. And the court said it had no quarrel with “laws imposing conditions and qualifications on the commercial sale of arms.”
Scalia added that laws banning “dangerous and unusual weapons” are “another important limitation on the right to keep and carry arms.” He gave an example: “M-16 rifles and the like.”
When the case was argued in 2008, Scalia suggested that other kinds of weapons and ammunition could be regulated.
“I don’t know that a lot of people have machine guns or armor-piercing bullets,” he said. “I think that’s quite unusual.”
Jonathan E. Lowy, director of the Brady Center to Prevent Gun Violence’s Legal Action Project, said the Heller decision thus did very little to restrict possible congressional responses to the Newtown shootings.
The Supreme Court has not yet ruled on an issue left open in Heller: whether the Second Amendment forbids blanket bans on having guns for self-defense outside the home. Last week, the 7th Circuit said it did.
The two central words in the phrase “to keep and bear” have different meanings, Posner wrote, and the second one “is unlikely to refer to the home. … A Chicagoan,” he wrote, “is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower.”
In a speech to the Brady Center in October, former Justice John Paul Stevens, who dissented in Heller and retired in 2010, said the decision was wrong but limited.
“Even as generously construed in Heller,” he said, “the Second Amendment provides no obstacle to regulations prohibiting the ownership or use of the sorts of automatic weapons used in the tragic multiple killings in Virginia, Colorado and Arizona in recent years. The failure of Congress to take any action to minimize the risk of similar tragedies in the future cannot be blamed on the court’s decision in Heller.”