By Mike Dorf
My new Verdict column is Part One of a two-part series that takes the pro-gun-control reaction to the Newtown massacre as an occasion to ask what kinds of gun control legislation would likely survive Second Amendment scrutiny by the Supreme Court. The short answer is that just about anything that has sufficient support to be enacted by Congress is likely to be upheld by the SCOTUS, but that's because it's hard to imagine national consensus building behind really serious gun control. Accordingly, I consider litigation involving state legislation in two gun-control-friendly states: New York and Illinois.
My column also asks the broader question of whether there is a Second Amendment right to possess firearms outside of the home. As I note in the column, shortly after the Heller case was decided, I wrote a symposium paper arguing that the doctrinal tools exist to argue that the Second Amendment does not apply outside of the home, and Darrell Miller followed that up with a much more elaborate and detailed version of the argument (to which Eugene Volokh forcefully objected). Here I want to make clear that I have little difficulty predicting what the Supreme Court, as currently configured, would do: The Court would say that the Second Amendment extends to public places, so that the Court would very likely affirm the Seventh Circuit's decision striking down the Illinois ban; whether it would permit the somewhat less restrictive New York law upheld by the Second Circuit is a closer question about which I won't speculate.
In any event, I want to distinguish predicting what a court will do based on knowledge of the druthers of the court's membership from applying the law using one's best judgment, all things considered. I've written at some length about that distinction but the basic idea should be clear enough to anyone who thinks about it. We might think that the Court will strike down the Illinois law because of any number of factors--especially the ideology of the Court's members--without also thinking that the existing legal materials could be said to fairly lead to this result. Prediction is a legal realist enterprise in which the legal materials enter into the process only insofar as one has reason to think that particular judges will be moved by those legal materials.
As a general matter, I think that legal materials count for a good deal at the Supreme Court, but hardly everything (as I discussed here). The Justices are part of the same weltanschauung as the rest of society, even though their views may lag or drift. Accordingly, it is quite possible to imagine that if there is a general shift in American public thought that would allow more gun control than it might have allowed just a few years ago, then even without a change in personnel, the Supreme Court would be inclined to permit greater regulation. I don't foresee a wholesale overruling of Heller--at least not without a change in personnel and maybe not even with such a change--but I find it relatively easy to imagine that just as the Court's conservatives have allowed the abortion right to be whittled away by regulations falling short of outright bans, so a more gun-control-friendly Court might allow the Heller right to be whittled away.
Let's consider a few possibilities:
(1) Minors. Abortion opponents have been very successful in paring down the abortion right by enacting restrictions on minors' access to abortion, typically laws requiring parental consent or notification. These laws are popular with pro-life voters who will support most abortion restrictions but they're also popular with nominally pro-choice centrist voters who figure that minors routinely must obtain parental consent for all sorts of less serious matters. Such voters often do not think through the reason why a minor might want an abortion without notifying or seeking consent from parents: fear that the parent(s) will abuse her if the parent(s) learn(s) that she has been having sex. Meanwhile, the courts have upheld such statutes so long as they contain a judicial bypass, but the procedures for getting such a bypass are humiliating at best.
Laws restricting access of minors to guns could easily follow the same model. For instance, many states have laws regulating how firearms are stored in households where minors reside. (Here is New Jersey's.) It is hard to see how gun rights groups could resist such laws, either in the political or the judicial domain, even though they make home protection via firearms impossible in many emergency situations. In Heller, Justice Scalia conjured an image of the homeowner reaching for a pistol in his nightstand to gun down an intruder. Gun control groups ought to be conjuring an image of a small child coming upon the same pistol and perhaps pushing for still-tighter restrictions on this basis.
(2) Funding. Early on, the SCOTUS held that while the government cannot forbid abortion, it need not fund abortion. The same is true of guns. E.g., if you want this, that or the other government benefit, you must certify that your home, workplace, automobile, etc., is gun-free.
(3) Waiting periods. The pro-life and gun-control movements have both hit upon this idea but the pro-life movement uses waiting periods more effectively to deny access to abortion by ensuring that a woman seeking an abortion from a distant provider must take off something like three days from work rather than one day. Waiting periods for gun purchases were originally designed to enable the government to check whether someone is legally qualified to own a gun, but now that computerization enables such matters to be determined instantly, I would look for waiting periods modeled on the abortion waiting periods. E.g., one must wait 24 hours after watching a film about the dangers of gun ownership to reflect on whether buying a gun is truly what one wants.
(4) Licensure, reporting requirements and petty harassment. Various and sundry of my Facebook friends have lately been posting information on how easy it is to buy a gun. Presumably they have in mind the worry that without additional hoops to jump through, the guns will end up in the wrong hands. That's fair enough, but it's also possible to make potential gun buyers jump through hoops simply to raise the cost (in time and money) of getting a gun. The pro-life movement has been very canny about this sort of thing because the courts have been reluctant to invalidate legislation on the ground that it is simply designed to make the right difficult to exercise. The same could be true of laws regulating guns.
In the nearly forty years since Roe v. Wade, we have seen that when the Court recognizes a right that some substantial subset of the People oppose, the right can be undermined very effectively, especially if there isn't a clear majority of Justices who unequivocally support the right. It would not be all that surprising if this pattern is repeated with respect to gun rights once at least one Justice who joined the majority in Heller and McDonald either comes to see the Second Amendment with greater ambivalence himself or is replaced with a Justice who feels such ambivalence.