The other Second Amendment shoe has been dropped by the Supreme Court. What does it mean for the future of gun control?

Two years ago, the Supreme Court, in District of Columbia v. Heller, struck down the District of Columbia’s handgun ban and ruled, for the first time in our history, that the Second Amendment guarantees the right to have a gun in the home for self-defense. The Heller ruling, however, applied only to D.C. as a federal enclave and, impliedly, to Congress. Within hours of that ruling, a lawsuit was filed in Chicago challenging Chicago’s similar handgun ban and raising the question whether the Heller right applies as a constraint on state and local gun laws through the Due Process Clause of the Fourteenth Amendment.

We now have the ruling that virtually all observers expected. In McDonald v. Chicago, the Court ruled the new Second Amendment right recognized in Heller applicable as a constraint on state and local gun laws. The 5-4 decision, sounding the death knell for Chicago’s handgun ban, tracks precisely the vote in Heller. The McDonald dissents, filed by Justices Stevens and Breyer, are brimming with renewed hostility toward the Heller ruling, including a fascinating discussion in the Breyer dissent of the blistering attack by professional historians on Heller’s butchering of history in the name of “originalism”.

Given that several states (and a few cities) have gun laws far stronger than federal law (which remains anemically weak, despite the Brady Law), does McDonald lay the groundwork for the unraveling of important state and local gun restrictions? If the gun lobby thinks so, it is likely to be sorely disappointed.

As an indicator of the real world implications of McDonald, the key passage in Justice Alito’s opinion says this: “It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not ‘a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’” Alito then reprises the remarkable language in Heller offering assurances of the continued validity of several broad categories of gun laws (including laws regulating the sale of guns, laws banning guns in sensitive places, laws banning concealed weapons, among others) and adds: “We repeat those assurances here.”

The Heller assurances have functioned to create “safe harbors” for the federal gun laws challenged in the wake of that decision. Time after time, the lower federal courts have upheld existing laws that arguably fit within, or are analogous to, the categories of “presumptively legal” gun laws cited in Heller. Now that the Court in McDonald has restated the importance of the Heller categories, they are likely to function as “safe harbors” for state and local gun laws as well.

Of course, there will be, as Justice Stevens predicts, an “avalanche” of legal challenges to gun laws in the wake of McDonald, some by the gun lobby, but most by criminal defendants seeking to overturn indictments and convictions for violating those laws. It is unfortunate that taxpayers will end up bearing the burden of defending against these challenges to entirely reasonable gun laws. Fortunately, however, McDonald provides no reason to believe that the laws themselves will be in jeopardy. Yes, there will be pitched courtroom battles in the states with the strongest gun laws, but with the lives of countless Americans at stake, they will be battles that must be fought.

So far, the oddest reaction to the McDonald decision is from the NRA’s Wayne LaPierre. Far from the purely celebratory statements he made after Heller, yesterday LaPierre himself conceded that the “constitutional victory” in McDonald could end up eventually as a “practical defeat”. Indeed, LaPierre has already put together his “enemies list” of those to blame for such a defeat, including “activist judges, defiant city councils, or cynical politicians.” Is he preparing his membership for the disappointments to come, as all manner of state and local gun laws are upheld and elected officials are emboldened to enact even tougher laws?

LaPierre may also be contemplating the future of the gun debate now that handgun bans are “off the table,” in the words of the Heller majority opinion. How long will the NRA’s leadership be able to argue, with anything approaching a straight face, that the Second Amendment precludes gun regulations like background checks, limits on large-volume sales, safe storage requirements, assault weapon bans, owner licensing, and registration of gun sales, when both Heller and McDonald read like legal briefs for the constitutionality of those laws? And, more importantly, how long will the NRA’s leadership be successful in using its legendary scare tactics to convince gun owners to oppose every gun regulation as a step down the “slippery slope” to a gun ban, when Heller and McDonald have taken gun bans “off the table”?

Viewing Heller and McDonald from LaPierre’s vantage point, an old expression comes to mind: Be careful what you wish for. It could come true.

The Supreme Court will be issuing its opinion for the Second Amendment case, McDonald v. City of Chicago, on Monday, according to SCOTUS Blog:

…There are still four undecided cases this term: Free Enterprise Fund, Bilski, Christian Legal Society, and McDonald v. Chicago… The Chief Justice has just announced that the Court will have its final opinions on Monday (the 28th) and that will close the Term, with the exception of any remaining orders in pending cases.

The Chicago case will determine whether the Second Amendment applies to state and local laws. The 2008 Supreme Court decision in District of Columbia v. Heller found that the Second Amendment protects an individual right to possess handguns for use in self-defense in a person’s home, but did not apply this ruling to the states. The Court did stress, however, that this right “is not unlimited.”

Click here to learn more about the Chicago case and the Brady Center’s brief, and here to learn more about the Second Amendment and common sense gun laws.

And, of course, check back on Monday for updates.

The DISCLOSE Act didn’t have to go forward this way. Not with the outrageous exemption for the NRA, which was later softened so that it would cover the Sierra Club, which didn’t even want an exemption, and the AARP, which doesn’t endorse candidates for political office.

Congressional leaders had a reasonable goal of wanting to bring “transparency” to corporate and advocacy expenditures in federal election campaign activities. Rep. Chris Van Hollen’s (D-Md.) proposal, known as the DISCLOSE (Democracy Is Strengthened by Casting Light on Spending in Elections) Act (H.R. 5175), sought to strengthen campaign finance disclosure rules in response to the U.S. Supreme Court’s Citizens United ruling in January which reversed decades of legal precedent by ending most limits on corporate election spending.

Congress worried that the new campaign ground rules set by the Court could make it hard for political campaigns and citizens groups to compete with the big money interests. They also worried that corporations would be free to pour money into non-profit organizations set up or resurrected from dormancy for the express purpose of attacking candidates whose ideas they didn’t like, giving them an advantage over groups that are not financed largely or solely by big money interests.

But the bill that Congress passed 219-206 Thursday sidesteps many of these concerns. In fact, by keeping the exemption for the NRA, it assures that the nation’s largest special interest group, representing those who make money manufacturing and selling guns, will be able to spend its big dollars, as well as be a conduit for other big dollar donors, without having to reveal contributor names. This gives this special money group an unfair advantage over just about every other.

What else could Congress have done?

Logically, it could have approved a proposed amendment by Rep. Donna Edwards (D-Md.) that would have exempted any advocacy group that had been around for at least 10 years, had members in all 50 states, plus D.C. and Puerto Rico, and that raised 15 percent or less of its money from corporations, unions, or big dollar ($100,000-plus) contributors.

That amendment would have exempted the NRA, and many other long-time advocacy groups of all sizes, and it would have made it much harder for a big corporation to set up a phony interest group just to undermine candidates who take positions with which they disagree.

But complaints by the NRA bosses, who don’t want to play by the same rules as the rest of us, led House Democrats who take NRA money to insist on the “carve out” without voting on Edwards’ amendment or any other that would have made this legislation a lot more equitable and sensible.

This kind of “special deal” law making is what keeps Americans disgusted with politics in Washington. And it ultimately could lead to the undermining of even more laws that are meant for the public’s good.

There is still hope that the Senate will improve this bill. Call, write, and email your Senators. Let them know that there’s got to be a much better path to fair disclosure of the role money plays in politics than the one the House chose that exempts one of the biggest players channeling money into politics.

A funny thing happened on the way toward shining a light on big money’s influence in political campaigns. Apparently, the 53 House Democrats who get money from the NRA decided to stand in the way. Not on principle. They’ve got no problem with disclosure rules for big corporations, small corporations, unions, or advocacy groups in general.

And it’s not because H.R. 5175 has anything to do with the Second Amendment or regulations on gun ownership. It doesn’t.

Rep. Chris Van Hollen’s (D-Md.) proposal, which is strongly supported by the Obama Administration and known as the DISCLOSE (Democracy Is Strengthened by Casting Light on Spending in Elections) Act, seeks to strengthen campaign finance disclosure rules in response to the U.S. Supreme Court’s Citizens United ruling in January. There’s not a single word about guns in the bill.

Among other things, the DISCLOSE Act requires that advocacy groups reveal the major sources of funding for their independent expenditures late in the campaigns of federal candidates for office.

But in response to complaints by the NRA bosses who don’t want to tell the public where their money comes from, the 53 Democrats who receive money from the NRA apparently insisted the bill be changed. This led to a “compromise” that exempts groups with more than a million members; and that raised 15 percent or less funding from corporations; that have members in all 50 states; and that have been around at least 10 years.

Funny thing, only one advocacy group actually involved in political campaigns – and one group alone – meets the new criterion. The NRA.

After word of this ironic and outrageous “carve out” spread throughout Washington and across the country, more than a hundred groups, conservative and liberal, loudly registered their objections to Congress, Van Hollen, and the NRA.

But it’s these 53 Democrats who should be the target, not only of the other groups that would have to abide by a different set of rules, but also, of the American people.

These 53 Democrats who refuse to stand up to a special interest on an issue that has nothing directly to do with guns or the Second Amendment are allowing NRA cash to decide what role money will play in our election campaigns.

This is not the first piece of sensible legislation that NRA-backed Democrats have thwarted or jeopardized because of their allegiance to the NRA and the money it pours into their campaigns. But before these Democrats get the idea that their behavior is acceptable, now is a good time for us to tell them that putting their cozy relationship with the NRA above the interests of the voters has got to stop.

Join us in demanding that if these Democrats vote for H.R. 5175 with an NRA exemption, they should return the cash and promise to not take any more NRA money indirectly in this or future elections.

The 53 Democratic members of the U.S. House of Representatives who have taken money from the NRA this year are:

Jason Altmire (PA);
Joe Baca (CA);
John Barrow (GA);
Marion Berry (AR);
Sanford Bishop (GA);
John Boccieri (OH);
Dan Boren (OK);
Leonard Boswell (IA);
Rick Boucher (VA);
Allen Boyd (FL);
Bobby Bright (AL);
Chris Carney (PA);
Ben Chandler (KY);
Jerry Costello (IL);
Henry Cuellar (TX);
Lincoln Davis (TN);
John Dingell (MI);
Joe Donnelly (IN);
Chet Edwards (TX);
Brad Ellsworth (IN);
Bart Gordon (TN);
Gene Green (TX);
Deborah Halvorson (IL);
Martin Heinrich (NM);
Brian Higgins (NY);
Baron Hill (IN);
Tim Holden (PA);
Steve Kagen (WI);
Paul Kanjorski (PA);
Larry Kissell (NC);
Frank Kratovil (MD);
Jim Marshall (GA);
Jim Matheson (UT);
Mike McIntyre (NC);
Mike Michaud (ME);
Alan Mollohan (WV);
Scott Murphy (NY);
Glenn Nye (VA);
David Obey (WI);
Tom Perriello (VA);
Collin Peterson (MN);
Earl Pomeroy (ND);
Nick Rahall (WV);
Mike Ross (AR);
Tim Ryan (OH);
John Salazar (CO);
Heath Shuler (NC);
Ike Skelton (MO);
Zachary Space (OH);
Bart Stupak (MI);
Gene Taylor (MS);
Timothy Walz (MN);
Charlie Wilson (OH).

Yesterday, Boston Globe columnist Yvonne Abraham wrote a great article on the cost of NOT passing anti-gun trafficking legislation in Massachusetts:

Will it really kill legal gun owners if we restrict them to one gun purchase a month? It may kill children if we don’t…. Some gun enthusiasts feel they need to buy more than 12 guns a year. Some parents in our besieged cities know they need fewer guns on the street. We live in a world where we have to find a reasonable balance between those needs.

She also touched on the absurdities of looking at the Second Amendment as absolute, and how that translates into defending terrorists’ right to bear arms:

We are now seeing the ridiculous but logical extension of that position in Washington: Incredibly, the NRA is supporting gun rights for suspected terrorists, opposing a federal law that would prohibit people on federal terror watch lists from buying guns. More than a thousand people on the watch list bought firearms between 2004 and 2010, and the NRA defends their right to keep doing it.

This is crazy. By failing to give even a fraction of an inch on their reading of the Second Amendment, the NRA imperils the safety of all of us.

Read the full article here.