What’s Next for Gun Rights?
Leading scholars offered their thoughts on Friday.

Dick Heller (Declan McCullagh/


To gun-rights supporters, the Supreme Court’s District of Columbia v. Heller and McDonald v. Chicago decisions may have felt like a dream come true — the Court recognized an individual right to keep and bear arms, and applied that right to state and local governments. Going forward, handgun bans are off the table in the U.S.

But judging by a conference hosted by the Fordham Urban Law Journal last Friday, the two sides of the gun-control debate have simply regrouped, recalibrated their expectations, and lined up for battle once again. As definitive as Heller and McDonald may seem, they offer little guidance to lawmakers and lower courts as to what kinds of gun control are still permissible.

For the pro-gun folks, Priority No. 1 is to make sure that Heller and McDonald have some practical effect. Despite the adverse court rulings, Washington, D.C., and Chicago have replaced their handgun bans with onerous requirements — such as registration and training — designed to discourage citizens from owning guns. A bill before the D.C. council would eliminate some requirements, as would a court case filed by Dick Heller (the plaintiff from the original decision). Numerous lawsuits have also been filed against Chicago’s post-ban regulations. While New York City has never banned guns outright, it too makes it difficult and expensive for residents to own guns and is facing court challenges.

But anyone who’s been paying attention to the Supreme Court knows that once the litigation ball starts rolling, it doesn’t magically stop when all the obvious abuses have ended. At the Fordham conference, UCLA law professor Adam Winkler estimated that 300 gun-rights suits have been filed. Many of these are frivolous, last-ditch appeals by criminals accused of misusing guns, and fewer than half a dozen laws have been invalidated.

Another panelist, the Independence Institute’s David Kopel, offered a rundown of court rulings that gun-rights supporters — or at least those who want the courts to micromanage state and local lawmaking — might hope for as the courts work out a system for balancing the public-safety aims of gun controllers against the Second Amendment rights of citizens. Bans on so-called “assault weapons” could be struck down because they do nothing to prevent crime. Courts could declare self-defense and the defense of others to be Second Amendment rights. They could even forbid public schools to punish students who fight back against bullies.

And while the Heller decision specifically noted that bans on concealed carry have a long history in America and have typically been upheld by the courts, several lawsuits seek to apply the right to bear arms outside of the home. Basically, the argument is that while bans on concealed carry are consistent with the Second Amendment, some rulings upholding such bans have noted that the jurisdictions in question allowed the open carrying of weapons. This suggests that states and cities may discriminate between open and concealed carry, but may not ban both. This is a questionable argument — as Winkler pointed out at the Fordham conference, through the course of American history, some states have banned open carry as well as concealed.

Also, Kopel claimed that Heller’s protection of bans on carrying in “sensitive places” is an “exception that proves the rule” (in the traditional sense of that idiom), but this is even more of a reach. The list he was referring to is non-exclusive — a footnote says it offers some “presumptively lawful regulatory measures only as examples” — and therefore the inclusion of a narrow regulation does not imply the exclusion of a broader one.



Meanwhile, in California my Federal Civil Rights lawsuit seeking to overturn California’s 1967 ban on openly carrying loaded firearms as well as overturning the two recently enacted unloaded open carry bans is fully briefed and awaiting a decision from the district court judge.

As luck would have it the 9th Circuit Court of Appeals recently established a framework for evaluating Second Amendment cases. California Attorney General Harris must prove that Open Carry falls outside of the scope of the Second Amendment as it was understood at the time of ratification and she must prove that the bans on open carry do not burden the Second Amendment right.