Five years ago, when I blogged on my own, I often focused just as much as legal developments as political one (thus, the moniker), so skip this post if you’re not interested in an open academic discussion about today’s Supreme Court decision in McDonald v. City of Chicago.

The main reason the McDonald decision is significant is because it’s the first time the United States Supreme Court has openly stated that it’s possible for a federal court to declare a state statute or municipal ordinance regulating the ownership or possession of firearms is subject to the Second Amendment of the federal constitution as applied to the States through the 14th Amendment.  The last noteworthy case dealing with federal-state relations in the context of gun control was the 1997 case Printz v. United States, in which temporary provisions of the Brady Act were declared unconstitutional.   However, they were not held unconstitutional on Second Amendment grounds, although the Court was asked to consider that, they were held unconstitutional on Tenth Amendment grounds that it violated the federal constitution’s concept of federalism.

At first blush, you might think that a ruling that the Second Amendment applies to the State would implicitly overrule Printz.  After all, wouldn’t the federal government have a legitimate and constitutional interest in promoting uniform reasonable and permissible regulations that do not violate the Second Amendment among the States?  And if a federal court can declare a state statute unconstitutional, then couldn’t the federal government incorporate the State government in its scheme to “reasonably regulate” the ownership, use,  and commercial trade of firearms?

In ruling that the Second Amendment applies to the State as the Court announced today in McDonald, the concept that when it comes to gun regulations States are a separate and independent sovereignty as Scalia discusses in the majority opinion does become muddled.

However, Scalia preemptively addressed this point in noting that in New York v. United States in 1992, the Court noted that while Congress may have near exclusive federal jurisdiction under the constitution to regulate an activity under the interstate commerce clause, the federal constitution does not confer Congress the power to compel the States’ to forbid or regulate such interstate activities.  Direct regulation by the federal government is required.  Anything less violates the federal constitutional concept of a unitary executive (this is not the concept of unitary executive as understood and expressed by the Bush/Cheney Administration, but a far more benign conceptualization.)  Therefore, just because a federal court can declare a State’s attempt to regulate firearms as unconstitutional, that doesn’t mean that Congress can commandeer the State government to enforce its federal regulatory scheme.

What does this all matter?  As an institution, the Court does not view decisions like today’s McDonald decision as making new law, but merely announcing the existence of something that was always present in the law.  Additionally, the Court prefers to try to harmonize its rulings from one case to the next.  The only time the Court considers that it has made “new law” is when it expressly overturns its prior precedents.  Yes, I just said the Court’s attitude is that the decision today in McDonald had essentially always been the law since there was a Fourteenth Amendment.

The McDonald decision today did not specifically address whether Printz was overturned.  Therefore, it is presumed that Printz would be read in conjunction with McDonald, and therefore, since they could be harmonized with one another, there is little chance that McDonald will later result in  invalidated a regulatory scheme like the Brady Act (Printz only declared a temporary provision of the Brady Act unconstitutional (requiring State law enforcement to conduct background checks) that quickly became moot once a federal database was functional).

The Supreme Court ruled in 1939 that a ban on sawed off-shotguns in United States v. Miller did not violate the Second Amendment and was a reasonable regulation on the exercise of the right to bear arms as the weapon “had not been shown to be ‘ordinary military equipment’ that could ‘contribute to the common defense.’”

Justice Alito, today, writing for the majority in McDonald specifically stated that the following were constitutional restrictions on the right to bear arms:

  • prohibit[ing]…the possession of firearms by felons or 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.

These exceptions swallow the rule and is a strong indicator that while the conservative majority in McDonald recognize the individual right to possess firearms, they also wanted to make a strong statement against using its decision to flood the courts with long accepted regulations regarding firearms.

McDonald is a key case in that it’s the first time we’ve seen the conservative wing of the Court advance the concept of select incorporation of the Bill of Rights into the Fourteenth Amendment.  However, I question whether it really will change the landscape in gun control laws beyond not permitting outright handgun bans.  In fact, after the Court ruled in 2008 in Heller that a D.C. handgun ban was unconstitutional, the lower court found a subsequent D.C. statute regulating the registration of firearms and an assault weapons ban was constitutional.  I’m sure an appeal of that decision is likely working its way back to the United States Supreme Court.

What’s interesting about this is gun control as a legislative matter is virtually non-existent.  At least, to the extent it was discussed in the 1990s.  Despite the conservatives worst stoked fears, the large Democratic majorities in Congress coupled with a Democratic White House has not resulted in any federal effort to push a host of gun control measures.

Recently, I’m aware of only two major bills dealing with guns in Ohio.  One was a bill that Governor Strickland signed that declared the State had a uniform system of regulation, thus invalidating any contradicting regulations enacted by “home rule” municipalities such as Cleveland’s “assault weapons ban” which Richard Cordray successfully defended to the Ohio Supreme Court and the pending bill to expand the right of a lawful, CCW permit holder to carry a firearm into a restaurant or bar so long as they consume no alcohol.

The gun control debate, to me, seems to be something that was far more politically active twenty years ago, but perhaps this decision is opening it up again.

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