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.

  • Bradley L. Cromes

    Hey, Modern…

    Correct me if I'm wrong, but we typically read the Printz case not in the context of 2nd Amendment law, but rather as a limitation by the Court on the Commerce Clause powers of Congress (Justice Stevens' powerful dissent argues forcefully that the Commerce Clause would allow the sorts of regulation the Court struck down there).

    In that light, it's not unfair to say that McDonald and Printz can be read consistently with each other (they simply articulate different principles of law, albeit using the same subject matter). While I'm typically one who jumps at the chance to flag the Roberts Court for judicial activism, I'm not certain this is an instance of that (given the incorporation of most of the rest of the Bill of Rights to the states via the 14th Amendment, McDonald helps bring some logical coherence to the incorporation doctrine itself).

    What concerns me is how this conservative majority will react to an inevitable challange to this year's healthcare law. As I think you and I both have written at length, that challenge is likely to come on Commerce Clause grounds (and, clearly, that's an uphill battle to put it generously).

    To the extent McDonald leaves Printz intact, we have reason to be worried. Scalia wrote the majority in Printz, and he's the intellectual force of the Court's right flank. That decision's seeming disregard for Commerce Clause powers of regulation leaves the door open for an eventual challenge to the healthcare law.

    Bottom line? For me, the Roberts Court wants Printz to remain. And that should trouble us even more than McDonald.

  • modernesquire

    No, I don't view Printz as a commercial clause case as much as it was a Tenth Amendment federalism case. There was no question that Congress could pass the Brady bill under the commerce clause, the only issue was their mandate on state officials to enforce it. That removes Printz from the category of commerce clause and fit it squarely in Reinquist's federalism cases.

    Again, I don't see Printz as a commerce clause case. To the extent Scalia discusses the commerce clause, he answers the dissent that the necessary and proper clause, a separate constitutional provision, does not allow what would otherwise be a legitimate exercise of the commerce clause to upset federalism by forcing the state to compel the States to further that scheme.

    Such a discussion though, is an implicit concession by Scalia that the Brady Act was a legitimate exercise of the commerce clause by the Congress. If it were otherwise, Scalia wouldn't address the Necessary or Proper Clause and he wouldn't have to base his decision on federalism grounds. A simple declaration that Congress lacked any jurisdiction to regulate guns in the Constitution would end it.

    I don't see Scalia disregarding the Commerce Clause at all in Printz. He addresses it directly, but not dismissively.

    As such, I stand by my assertion that Printz implicitly finds that the Brady Act could be harmonized to read as a “reasonable” regulation of Second Amendment rights under McDonald. The only way the Roberts Court could rule otherwise is to argue that McDonald truly made “new law” that was not considered in Printz. But if it were challenged, I think my argument would likely be made that the Court's silence in Printz, despite being specifically rule on Second Amendment grounds, constitutes as acceptance of Brady as not an unreasonable regulation of Second Amendment activity.

    To the extent that Printz was argued to be a commerce clause case, that just explains the constitutional basis for Congress to act in such a matter, but however, such an Act must be read in balancing between the Second Amendment right of individuals to possess firearms to Congress' right to regulate general interstate commerce.

    Not even Thomas' opinion specifically says that Brady would violate the Second Amendment, he just called it a colorable argument he wished the Court considered.

  • DelcoDem

    Ahh, Modern- I love it when you talk all legal. I've missed your case notes. Nice analysis.

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