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Flagging will for gun control

by Adam Winkler

The Washington Post

April 16 marked five years since the massacre at Virginia Tech, where a mentally ill student, Seung Hui Cho, used two handguns he had bought legally to kill 32 people and wound 25 others.

Other than a relatively minor law to improve the U.S. national database used for background checks, no significant gun-control legislation followed that tragedy.

Since then, there have been several mass shootings, including additional school rampages and the attempted assassination last year of Democratic U.S. Rep. Gabrielle Giffords of Arizona.

Yet, there remains little political will to reform America’s flawed gun-safety rules — unless, of course, someone is proposing to make access to guns easier.

But if gun control is dead politically, it remains alive and well in the courts, despite a few high-profile Supreme Court rulings. For all the talk of America’s gun culture, we also have a gun-control culture. Gun control is as much a part of America’s DNA as the Second Amendment and the six-shooter.

Still, gun control is usually seen as bad politics — a perception borne out by a politician who ought to know. Nearly 20 years ago, President Bill Clinton pushed through the Brady Handgun Violence Protection Act, requiring federally licensed gun dealers to conduct background checks on buyers, along with a 10-year ban on the manufacture and sale of new assault weapons. After the Republicans took control of the House in 1994, ending the Democrats’ 40-year reign in the majority, Clinton blamed gun control.

In his 2004 autobiography, Clinton wrote that the gun lobby “could rightly claim to have made Gingrich the House speaker.”

Although some evidence suggests that gun politics may not have had the impact Clinton thought, “Avoid Gun Control At All Costs” has practically become a plank in the Democratic Party platform. As a result, there are no promising gun-control proposals pending in Congress.

Gun-control advocates have fared even worse in state legislatures. Since the mid-1980s, more than 30 states have enacted laws making it easier for anyone without a criminal record to get a permit to carry a concealed weapon. Several states have adopted laws letting people carry guns in bars, in churches and on public transportation. Bills pending in some states would even allow guns on college campuses, such as Virginia Tech.

In 2008, the Supreme Court opened up a new battlefield for the gun-control movement. In District of Columbia v. Heller, the justices struck down D.C.’s ban on handguns, holding unambiguously for the first time that the Second Amendment guarantees the right to have a gun in your home. Gun rights supporters were hopeful that Heller would be the beginning of the end for gun control, and gun-control advocates were despondent.

They shouldn’t have been. Since the Heller decision, the courts have been inundated with lawsuits challenging nearly every type of gun-control law. Over the past four years, there have been more than 300 federal court decisions on the constitutionality of gun control. All but a handful of laws have been upheld.

The few regulations found to violate the Second Amendment have been outliers, such as D.C.’s notoriously ineffective handgun ban. After Chicago’s ban on such firearms was struck down in 2010, the city passed a new law requiring anyone who wanted to keep a handgun at home to complete an hour of training on a gun range. There was one catch: The new law barred the operation of gun ranges within city limits. This too-clever-by-half legislation was less about public safety and more — as a judge in the case voiding the gun-range ban said — a “thumbing of the municipal nose at the Supreme Court.”

One question left open by the Supreme Court’s landmark Heller decision was how courts should treat gun-control laws. Should they put strict limits on such laws, as they do with most regulations on political speech? Or should they give legislators broader leeway to regulate guns, as they do with laws that burden religious practices? Most of the courts to rule on gun control since Heller have chosen the latter approach.

Gun control’s success in the courts has come, in part, from the long history and tradition of firearms regulation. While gun control is often thought to be a 20th-century invention, Americans have regulated guns since our earliest days. The founding fathers, for instance, had strict laws that today’s National Rifle Association would never accept. James Madison, the author of the Second Amendment, and his generation restricted the possession of guns by political dissenters and racial minorities.

Through militia laws they also required people to appear at musters where their guns would be inspected by government officials and registered on public rolls. The founders even had their own version of Obamacare’s individual mandate: In 1792, Congress passed a law requiring nearly all free men to outfit themselves with a military-style firearm and appropriate ammunition.

To the founders, the Second Amendment was not a libertarian license for anyone to have any gun, anywhere he wanted. Instead, the founders balanced gun rights with the regulation they thought necessary for the public welfare.

Gun control has been a prominent feature of our legal landscape ever since — from the Wild West, where frontier towns such as Tombstone and Dodge City had the most restrictive gun laws in the nation, to the New Deal, when Franklin Roosevelt pushed to limit access to machine guns and other weapons popular among Prohibition-era gangsters.

And state courts, which have recognized the right of individuals to own firearms for personal protection since the early 1800s, have historically upheld gun laws as long as they don’t nullify that right.

Even the National Rifle Association used to be an advocate of gun control. In the 1920s and ’30s, the NRA was at the forefront of the movement, pushing states to adopt strict laws limiting the ability of people to carry concealed guns in public.

Of course, at this year’s NRA convention, all you were likely to hear about was the importance of repealing gun-control laws. Although the NRA likes to say that we just need to vigorously enforce the rules already on the books, in legislatures and courts across the nation the organization shows its true colors by fighting to get rid of those laws — including the few surviving restrictive concealed-carry regulations that the NRA once endorsed.

Second Amendment experts predict that the next major gun case to go to the Supreme Court will be a challenge to one of the remaining state or local laws that effectively bar the carrying of concealed weapons. Given that nearly every state allows almost anyone to carry guns on the streets, what the justices have to say about concealed weapons will be less significant than what they say about the role of the courts in scrutinizing gun laws. Will the justices respect the long-standing tradition of gun control? Or will they create novel, untested hurdles for such laws?

In a hostile political environment, the courts have long been gun-control advocates’ best friend. Whether that 200-year friendship can last much longer will be the question that next confronts the Supreme Court.

Adam Winkler is a law professor at the University of California at Los Angeles and the author of “Gunfight: The Battle Over the Right to Bear Arms in America.”