The Supreme Court just finished the Term that began in October 2009, and it went out with a bang. On Monday, it announced what was perhaps the most-anticipated opinion of the year, McDonald v. City of Chicago.
The genesis for McDonald was District of Columbia v. Heller, 554 U.S. __ (2008), the case in which the Court determined that the Second Amendment protects an individual right to bear arms, not merely a right to bear arms as part of service in a “militia.” Heller invalidated what amounted to a total ban on home handgun possession in the District of Columbia.
The next step for advocates of gun rights was to determine whether Heller applied to the states. The Supreme Court held many years ago that the Second Amendment applies only to the federal government and did not limit the power of state governments. United States v. Cruikshank, 92 U.S. 542 (1875). But that was before the Court began the process of “selective incorporation,” i.e., deeming some components of the Bill of Rights so essential to “due process” that they apply to state governments under the Fourteenth Amendment’s guarantee that no state shall “deprive any person of life, liberty, or property, without due process of law.”
So the NRA and several citizens filed suit, challenging de facto handgun bans in the cities of Chicago and Oak Park, Illinois. Relying on Cruikshank and similar cases, the federal district court and the Seventh Circuit upheld the bans. The Supreme Court agreed to review the case. Some constitutional law afficionados thought that the Court might use McDonald as a vehicle to abandon selective incorporation and instead declare some or all of the Bill of Rights applicable to the states through the Privileges and Immunities clause of the Fourteenth Amendment. In fact, one Justice — Justice Thomas — voted to do exactly that. Four other Justices — Justices Alito, Kennedy, Scalia, and Chief Justice Roberts — voted to selectively incorporate the Second Amendment. Despite this disagreement about the proper basis for the Court’s ruling, the five Justices in the majority agreed that the Second Amendment applies to the states. Having resolved that issue, the Court only needed to apply Heller to find unconstitutional the handgun bans at issue in McDonald.
What does this mean for North Carolina? My tentative thoughts are as follows:
1. There will be more litigation over gun rights. Although State v. Britt, discussed here, already provided a platform for such litigation, McDonald adds fuel to the fire. In fact, the News and Observer reports this morning that a lawsuit has already been filed challenging the governor’s authority to limit the public carrying of guns during a declared state of emergency.
2. The basic prohibition against felons possessing guns will remain in place. Both in Heller and McDonald, the Court made clear that its rulings should not be read to foreclose all restrictions on gun possession, particularly restrictions on gun possession by convicted felons. Some commentators, like Doug Berman at Sentencing Law and Policy, have expressed doubts about the propriety of such laws, but given the Court’s endorsement of them, I doubt that they are at risk. Of course, Britt has already created an exception to North Carolina’s felon-in-possession law for certain felons, but that exception appears to be fairly narrow, as discussed here.
3. Some other gun restrictions are less clearly constitutional. For example, G.S. 14-277.2 prohibits the possession of weapons at parades and demonstrations. I can imagine a court finding that statute unconstitutional in the wake of McDonald, and there are several other statutes that might also be vulnerable. Of course, one lesson from Britt and Whitaker is that challenges to statutes may gain more traction when brought prospectively by law-abiding citizens rather than retrospectively by defendants charged with violating the statutes at issue.
To sum up, I see McDonald as having a modest impact in North Carolina. It may intensify the ongoing debate over gun rights and may spawn some litigation around the edges of our gun laws, but because those laws are already relatively protective of gun rights, I doubt that McDonald will bring a sea change. If you see things differently, please post a comment.