Guns Raise Stakes for Kagan

Today’s Supreme Court ruling on the Second Amendment upholds most current laws, but will also compel senators to inspect Elena Kagan’s spotty history on the issue, says Adam Winkler.

06.28.10 1:39 PM ET

Today the Supreme Court ruled in a close, 5-4 vote, that the Second Amendment applied to state and local governments. In a previous ruling, the Court held that the amendment guaranteed individuals the right to possess firearms and limited federal gun control laws. This morning’s decision greatly expands the reach of the Second Amendment: most gun control laws are adopted by state and local governments, not Congress. The NRA is hailing the ruling as a landmark decision.

But for a landmark, this one will have remarkably little impact. The Courts are likely to uphold the vast majority of gun control laws currently on the books.

By opening up to challenge the 20,000 or so state and local gun laws to challenge, the Court has created a windfall for gun rights attorneys.

When the Supreme Court first unambiguously held that the Second Amendment protected an individual's right to own guns—rather than the right of states to form militias—the Justices made clear that the right was “not unlimited.” Laws banning felons from possessing firearms, outlawing guns in school zones, or restricting commercial sales (such as background checks) remain valid.

Following this guidance, the federal courts have ruled on the constitutionality of gun control in nearly 200 cases over the past two years. Only two laws have been overturned, both involving broad bans on handgun possession. Other than complete bans on handguns—which, outside of Illinois, no city or state currently has—gun control has survived the new judicial scrutiny.

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What’s the next target for gun rights advocates? By the end of this week, we can expect a lawsuit to be filed challenging New York City’s burdensome permitting law. Under New York’s law, you are allowed to possess a firearm so long as you have a permit but the permits are nearly impossible to obtain. The rich and famous can get them—Donald Trump, Don Imus, and Ed Koch reportedly have them—but ordinary people usually can’t. Constitutional rights shouldn’t be doled out unevenly based on the whims of government officials, so New York’s scheme should be seriously questioned.

Gun rights lawyers will have less success trying to invalidate laws restricting concealed carry of firearms or bans on other weapons, like assault rifles or machine guns. As the Supreme Court has recognized, there is a long tradition in America of restricting concealed firearms and lawmakers are well within their power to outlaw especially dangerous and unusual weapons.

The most immediate impact of today’s decision will be on lawyers. By opening up to challenge the 20,000 or so state and local gun laws, the Court has created a windfall for gun rights attorneys. They will have clients lined up outside their doors.

One lawyer in particular will be profoundly affected: Elena Kagan. The decision brings the gun issue front-and-center in her confirmation hearings this week. As a clerk to Justice Thurgood Marshall, Kagan wrote that she was “not sympathetic” to a gun rights claim. Senators from states with strong pro-gun constituencies are likely to seize upon that statement as evidence of her hostility to gun rights—and point to today’s ruling as emphasizing the importance of this issue.

Kagan will have a good defense: She can say she was merely restating the law as it existed at the time.

And when the hundreds of new gun cases the Supreme Court has invited gun lawyers to file in the coming months are heard, government lawyers will also have a good defense. They will hold up these landmark gun rulings of the Supreme Court, and point out that the Justices themselves have made clear that most forms of gun control don’t violate the Second Amendment.

Adam Winkler is a constitutional law professor at UCLA.