The New York Times Room for Debate invited me to submit a contribution on the impact of Heller and McDonald on the power of the government to enact gun control laws. I concede that the precedents have had a limited effect on legislative efforts, but the cases have altered our constitutional culture.
In 2008, the Supreme Court affirmed in District of Columbia v. Heller that a federal handgun ban violates the Second Amendment. Two years later in McDonald v. Chicago, the justices held that state and local governments also could not prohibit handguns. Over the last six years, a bevy of challenges have been filed against various firearm laws. For the most part, the lower courts of appeal have upheld them. On appeal, the gun-shy Supreme Court has refused to intervene in every Second Amendment case since McDonald. In December 2015, Justices Thomas and Scalia castigated their colleagues’ complacency, as the inferior courts “relegat[ed] the Second Amendment to a second-class right.”
In light of this track record, many scholars contend that court’s interpretation of the Second Amendment has not had a meaningful effect on gun control regulations, beyond invalidating handgun bans in Chicago and the nation’s capital. This perspective misses the forest for the trees. Heller and McDonald, and the two-decade process that led to those landmark cases, have revolutionized our constitutional culture in profound ways.
Three decades ago there was a wide-ranging consensus that the antiquated Second Amendment only secured the right of states to maintain militias, and in no way affected gun control laws. Chief Justice Warren Burger, in a now famous 1990 interview in Parade Magazine, wrote that the idea that there was an individual right to keep and bear arms was a “fraud.” But following the powerful research of scholars like Don B. Kates Jr.,Sanford Levinsonand others, the history of the Second Amendment came back into focus: The two-century old provision guarantees a right of individuals, unconnected with militia service, to bear arms.
Today, despite contentious Supreme Court decisions, and rancorous public debates, politicians across the spectrum now acknowledge the power of the Second Amendment. Hillary Clinton recently said, “I believe law-abiding, responsible Americans have a right to own guns.” Then-Senator Barack Obama likewise acknowledged, “I believe that the Constitution confers an individual right to bear arms,” and said he “never favored an all-out ban on handguns.” Both politicians then promptly endorsed “reasonable” gun control measures, but their admission of the right is a testament to our restored constitutional paradigm.
There was a time when the only constraint on firearm restrictions was the popular will. Now, with Heller and McDonald on the books, legislatures must also contend with the Constitution. This altered dynamic is illustrated by the constitutional challenge to New York’s post-Sandy Hook gun laws. A federal judge in Buffalo upheld the SAFE Act’s assault weapon registry and prohibition of magazines that hold more than 10 bullets. But the court invalidated the requirement that only seven bullets could be loaded into a ten-bullet magazine. “It stretches the bounds of this court’s deference to the predictive judgments of the legislature,” Judge William Skretny wrote, “to suppose that those intent on doing harm (whom, of course, the act is aimed to stop) will load their weapon with only the permitted seven rounds.” In other words, the fanciful law makes no sense — as it will never be followed by malefactors — and doesn’t pass constitutional muster.
Legislatures, take note. Even if the lower courts routinely — and in my estimation erroneously — uphold gun control measures, Heller and McDonald still require the government to ensure that laws actually promote public safety, and are not merely arbitrary and undue burdens to the right to bear arms.