Lund in NY Times: On Constitutionality of City, State Gun Laws

The question of constitutionality of existing city and state gun laws was left open by the Supreme Court's landmark ruling in District of Columbia v. Heller last year, but Professor Nelson Lund, a noted Second Amendment scholar, does not believe it likely that gun laws would be overturned altogether.

The high court's ruling in Heller struck down in part the District of Columbia's strict handgun law and affirmed for the first time the individual's Second Amendment right to personal gun ownership. Lund points out that the court's failure to state specifically whether the Second Amendment applies to state and local governments in Heller "clearly indicates that governments will still have wide latitude to regulate firearms."

Supporters of gun rights have filed bills challenging local gun laws that have resulted in varying rulings by federal appeals courts. Lack of agreement among the appeals courts on a constitutional issue may indicate probability that the Supreme Court will eventually take up the issue for review.

Conflicting Rulings on Guns Open Way to Supreme Court Review, The New York Times, June 17, 2009. By John Schwartz.

'''Californians, Hawaiians and Oregonians have a Second Amendment right to bear arms, but New Yorkers, Illinoisans, and Wisconsinites don't,' Professor Winkler said. 'The Supreme Court will want to correct this sooner rather than later.'

"The process of applying amendments of the Bill of Rights to the states, known as incorporation, began after the Civil War but had its heyday in the activist Supreme Court of the Earl Warren era. Much of the Bill of Rights, including the First Amendment's freedom of speech and some rights of criminal defendants, have been applied to the states, but other elements have not, including the Seventh Amendment right to a civil jury trial and the Second Amendment.

"Incorporation fell out of favor after the 1960s, but a new generation of largely liberal scholars of law and history have brought it back into the intellectual mainstream, said Akhil Reed Amar, a law professor at Yale University, who supports the process.

'''The precedents are now supportive of incorporation of nearly every provision of the Bill of Rights,' Professor Amar said. 'Now what's odd is that the Second Amendment doesn't apply to the states.'

"Sanford Levinson, a law professor at the University of Texas, said he would be surprised if the Supreme Court accepted these gun cases, because some of the conservative justices on the court had scoffed at incorporation arguments in the past and might not want to set a precedent.

"Professor Amar, however, argued that the justices would not only take up the case but would also ultimately vote for incorporation of the Second Amendment.

"Even if the Second Amendment becomes the controlling law of every state and town, constitutional scholars say it is still unlikely that gun laws would be overturned wholesale. The Supreme Court's Heller decision last year, notes Nelson Lund, a law professor at George Mason University, 'clearly indicates that governments will still have wide latitude to regulate firearms.'

"Even the Ninth Circuit in California, while applying the Second Amendment to the states, still upheld the gun ordinance that gave rise to the lawsuit.

"Eugene Volokh, a law professor at the University of California, Los Angeles, said the view of the Ninth Circuit reflected what polls have said was, by and large, the view of the American people.

'''There is a right to bear arms,' Professor Volokh said, 'but it's not absolute.'''

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