Overview of the New Report on the Gun Rights Debates

Joseph Tartaro, the longtime executive editor of Gun Week magazine, looked out at a meeting room filled with hundreds of gun owners and gun rights advocates and announced that, at last, good times had arrived.

Thirty years earlier, Tartaro told the Second Amendment Foundation’s annual conference in Phoenix on Sept. 28, only four states allowed the carrying of concealed weapons in public. And the District of Columbia had just enacted one of the strictest gun control laws in the country.

Today, explained Tartaro, the foundation’s president, more than 40 states have so-called “shall issue” laws that allow carrying concealed firearms in public. And three months earlier -- on June 26 -- the Supreme Court had struck down Washington’s handgun ban. The precedent-setting decision established an individual right to own and possess firearms for self-defense, at least in one’s home.

“We’ve reached the good days,” Tartaro continued. More handguns are being sold than at any other time in history. Long gun sales would be up too but for the bad economy. “People have discovered,” he said, “that guns are not as scary as they thought they were.”

“Law-abiding people should be able to defend themselves, their families and their communities,” Tartaro concluded.

Gun rights advocates indeed have much to celebrate thanks to the Supreme Court’s District of Columbia v. Heller decision, which transforms a decades-long dispute over the meaning of the Second Amendment. The awkwardly phrased 27-word provision proclaims: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Following a 1939 Supreme Court decision, federal courts had ruled all but uniformly for more than 60 years that the amendment’s opening clause limited its scope to protecting the states’ rights to organize militias. But the amendment did not establish an individual right to own or possess firearms, courts held. Under the so-called collective-right view, Congress and state and local governments remained largely free to regulate guns as they saw fit.

Gun rights advocates stepped up their efforts to challenge that doctrine in the 1960s and ‘70s. Over time, they gained support for their claim that the amendment established an individual right -- first from many politicians, then from some academics and eventually from the general public.

The Supreme Court finally took up the issue after the federal appeals court for the District of Columbia struck down the D.C. gun ban in March 2007. The high court’s 5-4 ruling gave gun rights advocates the victory they had awaited for so long.

Writing for the majority, Justice Antonin Scalia said the amendment established an individual right for “law-abiding, responsible citizens to use arms in defense of hearth and home.” D.C.’s ban on handguns -- the “quintessential self-defense weapon” -- was invalid, he said, along with the law’s provision requiring that any weapons in the home be either disassembled or trigger-locked.

Writing for the four dissenters, Justice John Paul Stevens said the ruling upset a “settled understanding” that the Second Amendment allowed virtually unlimited regulation of civilian use of firearms. He said the D.C. gun ban could be “just the first of an unknown number of dominoes to be knocked off the table.”

Leading advocates and experts disagree on the likely impact of the ruling. “Many laws [regulating guns] will be upheld -- the laws that make more sense,” says Alan Gura, the Alexandria, Va., lawyer who successfully represented D.C. private security guard Dick Heller and other plaintiffs in challenging the gun ban. “But laws that serve no legitimate governmental purpose but merely serve to harass gun owners, laws that make gun owning difficult or expensive -- those laws are going to be struck down.”

Gun control advocates are playing down the possibility that lots of gun regulations are now in constitutional jeopardy. They emphasize passages in Scalia’s opinion that limit the Second Amendment right to weapons “in common use” and that leave standing laws setting “conditions and qualifications” on the commercial sale of arms.

“We’re actually quite encouraged by comments that the majority made in the course of that decision offering some reassurance that some very broad categories of gun laws . . . are what the court called presumptively lawful,” says Dennis Henigan, vice president for law and policy at the Brady Center to Prevent Gun Violence in Washington, the non-partisan policy arm of the Brady Campaign to Prevent Gun Violence, a political action committee.

A leading gun rights lawyer for the National Rifle Association (NRA) somewhat similarly plays down the likely impact of the ruling. “It’s not as though all the gun regulations in the country are going to go by the wayside,” says Stephen Halbrook, author of a number of pro-gun rights books and articles. But Halbrook says the court’s decision represents “a “tremendous moral defeat” for gun control advocates.

Other academic experts disagree. “In practice, the legislatures are not that limited in the kind of gun controls they can pass,” says Gary Kleck, a professor at Florida State University’s College of Criminology and Criminal Justice in Tallahassee, who describes himself as a supporter of “a moderate amount” of gun control. “They can do virtually everything they could before the decision.”

But Philip Cook, a professor of economics and sociology at Duke University in Durham, N.C., and a supporter of stronger regulation, says gun control supporters are engaging in “happy talk” when they minimize the ruling’s potential effects. “The decision has been a litigation magnet,” says Cook. “At this point it remains hard to say how far the Supreme Court and the [federal] circuit courts are going to push this.”

The Second Amendment Foundation, in fact, filed the first post-Heller lawsuit on the same day of the decision, challenging a Chicago handgun ban similar to the D.C. law. The NRA followed with a package of suits challenging handgun bans in Chicago and several nearby suburbs. Separately, the foundation and other gun rights groups challenged a San Francisco provision banning handguns in public housing.

Criminal defendants in federal courts are also citing the Heller decision to try to set aside sentence enhancements under federal provisions increasing prison terms for use or possession of guns by offenders. So far, judges appear to be rejecting those arguments. But the Supreme Court is set to hear arguments on Nov. 10 testing a federal law making it a crime for someone convicted of domestic violence to own a gun.

The ruling is also renewing the debate touched off by the Virginia Tech shootings in April 2007 over college and university rules prohibiting possession of firearms on campuses. A student group advocating the right of licensed students to carry concealed weapons on campus claims to have attracted more than 30,000 members -- but is also drawing criticism from gun control groups that say increasing the number of firearms will make campuses less instead of more safe.

In Washington itself, the city council quickly responded to the Supreme Court decision by establishing a registration system for handguns while retaining other restrictions, including the requirement to store weapons disassembled or trigger-locked. The council adopted a significantly revised interim measure in September under the threat of a bipartisan measure in Congress to strip the district of all authority to regulate firearms. The new “emergency” legislation permits registration of semiautomatic pistols as well as single-shot pistols and eliminates the trigger-lock requirement. Those provisions are expected to be included in a permanent law to be adopted later.

The Heller decision came at a time of relative quiet in the gun control debates -- debates that often seem to be as much clashes of cultures and values as disagreements on law and policy. Gun control has receded as an issue over the past two years in Congress and state and local legislative bodies. Both major party presidential candidates endorsed the Supreme Court ruling to recognize individual rights under the Second Amendment: Republican John McCain strongly, Democrat Barack Obama more ambiguously.

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