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D.C. gun suit could herald an 'avalanche' of litigation

The Supreme Court ruling Monday in McDonald v. City of Chicago places the District of Columbia at the vanguard of answering a new and crucial question: Just what kinds of gun regulations are constitutional in the United States?

The McDonald decision has its roots, of course, in Heller v. District of Columbia, decided two years ago by the same 5-4 margin. That ruling struck down the city's blanket handgun ban after finding a constitutional "right of law-abiding, responsible citizens to use arms in defense of hearth and home." The court Monday, in holding that the Heller standard applies to state and local law, did not significantly modify it.

The issue with Heller, and hence with McDonald, is that the court hasn't outlined a clear standard for what gun restrictions are OK and which ones aren't. Here's what Justice Samuel Alito, writing the lead opinion in McDonald, had to say on the matter:

[T]he right to keep and bear arms is not 'a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.' We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill,' 'laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.' We repeat those assurances here. Despite municipal respondents' doomsday proclamations, incorporation does not imperil every law regulating firearms.

Other than that passage, the holding of the court is silent on just what gun restrictions would pass muster under Heller and McDonald, and which ones would have to be discarded. Without any sort of bright-line standard, or even vague guideposts, it's now up to lower courts to figure the whole thing out -- a fact seized on by the dissenting justices in McDonald.

Justice Stephen Breyer lamented the "lack of a manageable judicial standard," asking, "[W]hy these rules and not others? Does the Court know that these regulations are justified by some special gun-related risk of death? In fact, the Court does not know. It has simply invented rules that sound sensible without being able to explain why or how Chicago's handgun ban is different." Justice John Paul Stevens, in one of his valedictory opinions, wrote in a separate dissent that McDonald "invites an avalanche of litigation that could mire the federal courts in fine-grained determinations about which state and local regulations comport with the Heller right -- the precise contours of which are far from pellucid -- under a standard of review we have not even established."

That avalanche of litigation is already underway.

In July 2008, less than three weeks after the Heller decision came down, the D.C. Council passed new, supposedly Heller-friendly gun laws -- laws that required gun owners to pass a written exam, register their weapons, submit them to the city police for ballistics testing, and keep them inside their homes. (The original law allowed only revolvers, but subsequent revisions to the law, made in large part to avoid litigation, allowed semiautomatic pistols.)

Gun advocates found the restrictions too onerous, not surprisingly, and by September, Heller again sued the District, arguing that his namesake case rendered the new laws unconstitutional.
So far, the District's gun laws have passed muster: In March, U.S. District Court Judge Ricardo M. Urbina ruled that the new laws -- specifically, a registration requirement and a ban on assault weapons and high-capacity magazines -- did in fact meet the standards of Heller.

City officials and gun-control advocates have taken heart in Urbina's ruling, which holds out the prospect that gun laws as strict as the District might still be constitutional. In fact, Peter Nickles, the District's attorney general, said Monday afternoon that "other jurisdictions would do well to look at what we did here."

"We are in the unique position of being the first to balance the needs of the city with Second Amendment rights," Nickles said, inviting lawmakers across the country to examine the city laws. "I'm willing to talk to any and all of them."

Richard E. Gardiner, part of the legal team waging the current challenge to the District's gun laws, says not so fast.

He says that the McDonald decision -- which, unlike Heller, explicitly establishes a fundamental right of individuals to keep and bear arms -- attacks a crucial part of Urbina's holding. He expects a federal appeals court to reverse that decision.

More generally, Gardiner says, the standard for appropriate gun laws "still needs to be fleshed out," but in his view permissible gun restrictions would extend only to the few examples cited by Alito in his opinion -- "and even those are going to have to be given limited application," he says.
But it could be years before the Supreme Court brings any sort of clarity to the matter, several observers say. In the meantime, local officials are more concerned about a more clear and present threat to city gun laws: Congress.

Since the original Heller decision -- and even well before that -- federal lawmakers have threatened to overturn the city's gun laws, leaving in place only relatively permissive federal law.
Those attempts have thus far proven unsuccessful. But Walter Smith, an attorney and executive director of the D.C. Appleseed think tank, says the McDonald decision offers a powerful incentive for pro-gun interests to gut the city's firearm restrictions in the coming months. Today's decision means new scrutiny for gun laws across the country, Smith says, and it's in the interest of the National Rifle Association et al. to quickly show what shape post-McDonald gun laws ought to take -- and it's relatively simple to make an example of the District.

"It's easier to get stuff done the way you want it done in the District because the District doesn't have a vote in Congress," Smith says. "And the NRA does, in spades."

Or as Nickles put it: "Congress doesn't have plenary power over Chicago."

By Mike DeBonis  |  June 28, 2010; 7:03 PM ET
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The 2nd Amendment states “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”. Why cannot a citizen possess hand-grenades? What if a citizen is a poor marksman, but has great throwing ability?

Posted by: lynnlm | June 28, 2010 7:45 PM | Report abuse

Hand grenades? You sound goofy.

But of course we must realize that now the law abiding citizens of the USA will be able to lawfully defend themselves and their families against well armed gangs and home invaders with weapons, and that must really stick in the liberals craw.

And I'm glad it does.

Posted by: Thozmaniac | June 28, 2010 8:29 PM | Report abuse

It's always interesting to see the Washington Democratic Post manipulate a story to what they believe is an advantage to the Democrats point of view.

Tough one huh people?

Posted by: WHOOSONPHIRST | June 28, 2010 8:50 PM | Report abuse

There is a really easy way to avoid this 'avalanche of litigation'. Just abide by the constitution. Of course, doing that would eliminate almost all of our countries problems. If we were smart enough to do that there wouldn't be any liberals in the first place.

Posted by: CCRyder1 | June 29, 2010 6:53 AM | Report abuse

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