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2nd Amendment forecast: Litigation mixed with thunderstorms

Post by Patrick O'Callahan on June 26, 2008 at 5:30 pm |
June 26, 2008 5:30 pm

While we’re on the subject of the Second Amendment ruling, here’s a sober look at its likely real-world effects, by the reporter who covers the Supreme Court for the Associated Press. The NRA is breaking out the champagne, but it may be in for a bit of a hangover.


By MARK SHERMAN

Associated Press Writer


WASHINGTON (AP) — The Supreme Court embraced a personal right under the Constitution to have guns for self-defense. But in its historic examination of the Second Amendment, the justices left unanswered whether gun rights extend beyond the home or how far.


The court split ideologically in its decision Thursday striking down the District of Columbia’s ban on handguns. Each side, however, agreed it will take many lawsuits to spell out fully the right to keep and bear arms.



Justice Stephen Breyer, in dissent with three other liberal justices, gloomily said the decision "threatens to throw into doubt the constitutionality of gun laws throughout the United States."


Indeed, gun rights supporters said they would bring legal challenges aimed at local, state and possibly federal restrictions.


The Washington case "is merely the opening salvo in a series of litigations that will ultimately resolve what weapons and persons can be regulated and what restrictions are permissible," said Robert Levy, the lawyer who helped craft the case against the capital’s gun ban and financed the suit and appeals.

"Because of Thursday’s decision, the prospects for reviving the original meaning of the Second Amendment are now substantially brighter," Levy said.

The National Rifle Association, which opposes almost all gun restrictions, used similar language in praising the court’s ruling.


Yet Justice Antonin Scalia, who wrote the majority opinion that his four conservative colleagues joined, observed that the court was not examining a variety of long-standing restrictions. They include laws that prohibit concealed weapons; bar felons and the mentally ill from owning guns; or ban firearms in schools or government buildings.


Big-city politicians took some solace in Scalia’s list, which he said was not exhaustive. They hoped licensing requirements also might pass constitutional muster.


The court left in place that aspect of Washington’s regulations of guns because Dick Anthony Heller, 66, the armed security guard who sued for the right to have a handgun at home, did not contest the licensing requirement at the Supreme Court. The justices had no occasion to rule on it.


The licensing issue is among the most important to be answered in the future. So is the question whether the Second Amendment even applies to state and local governments, or only guarantees rights against unreasonable federal interference.


Most of the Bill of Rights has been held to apply to the states. But Scalia and Justice Clarence Thomas have been skeptical about applying others.

Among proponents of gun control measures are some who believe the decision could mark a symbolic high point for the gun rights movement, but lead to diminished influence.


"For 40 years, the NRA has opposed nearly all proposed gun laws on constitutional grounds," said Jim Kessler, vice president for policy at the centrist group Third Way. "The Supreme Court just told them to get a new argument."


Mark Tushnet, a Harvard Law School professor who last year wrote a book about the battle over guns, said the ruling probably will eliminate the "slippery-slope" argument that gun control laws will lead to confiscation of guns.


"This decision takes gun confiscation off the table. So they won’t be able to capitalize on that kind of argument any more," Tushnet said,

Legal challenges may rage for the next five to 10 years before the reach of the Second Amendment is clear, Tushnet said.


By that time, of course, the makeup of the Supreme Court is likely to be very different.

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