Constitution Check: Is the Supreme Court Obama’s silent partner on gun control?

Lyle Denniston, the National Constitution Center's constitutional literacy adviser, looks at the Supreme Court's recent silence on gun issues and some trends in the lower court system.

THE STATEMENT AT ISSUE:

“The epidemic of gun violence in our country is a crisis….A national crisis like this demands a national response. Reducing gun violence will be hard. It’s clear that common-sense gun reform won’t happen during this Congress. It won’t happen during my presidency. Still, there are steps we can take now to save lives. And all of us --- at every level of government, in the private sector and as citizens -- have to do our part. We all have a responsibility.”

– Excerpt from an op-ed page column in The New York Times by President Barack Obama on January 8, calling on the nation to join in his efforts to reduce gun violence in the nation.

WE CHECKED THE CONSTITUTION, AND…

It is not unfair to suggest that the Supreme Court has contributed – though probably not intentionally – to America’s difficulty in debating the gun violence issue and coming up with politically acceptable methods of limiting access to guns. It was the court, after all, that interpreted the Constitution’s Second Amendment to embrace a personal right to have a gun.

In any attempt to discuss new policies to limit guns, it is hard to reach for consensus when one side of the debate insists that its view on the subject is based upon the widest possible interpretation of the Second Amendment: no limits are allowed. That is, in truth, an exaggeration of what the court actually said on the issue, but it has become a part of virtually every political discussion about gun controls.

The court issued its decision more than seven years ago in the case of District of Columbia v.  Heller, striking down a total ban on handguns in Washington, D.C. Except for a decision two years after that, making the newly declared right applicable across the nation but not expanding its breadth, the court has moved entirely to the sidelines of public discourse about gun rights and gun regulation.

It is not as if there have been no opportunities to take up a case to further explain just how expansive, or limited, the Second Amendment right actually is. In about a dozen cases, gun rights advocates have filed appeals, challenging lower court rulings that, in fact, have narrowed considerably the potential sweep of the Heller decision. But, like clockwork, the Justices have turned down all of them – sometimes over the protests of a few Justices who believe that the court has a duty to speak again on the subject.

There has been no explanation for the court’s reluctance to get involved again. One theory is that most of the Justices are reluctant to reopen a question that they know will be deeply divisive, so they have been leaving the lower courts with the opportunity to continue to sort things out.

The result, however, is that some very important rulings have emerged from lower courts, and the overall result so far is clearly that gun control has succeeded more often than not. Although these decisions are binding only in the geographic areas where a given court sits, the judges have been borrowing ideas and principles from each other, so that the results are becoming more widespread.

Here is a sampling of some of those rulings:

First, the Second Amendment right to have a gun is more protected within a person’s own home, but weapons kept at home generally must be kept under lock and out of the reach of children.

Second, guns may be kept in the home primarily for self-defense, in case of intruders.

Third, the right to have a gun outside of the home is quite limited, but again exists there primarily for self-defense.

Fourth, gun possession almost always requires that a gun owner get a license to have a gun, and often the owner must be able to show that they have a “good reason” for needing a gun before they may be licensed.

Fifth, assault-type weapons that can fire many rounds in a very short period of time are being

banned, here and there, and bans on bullet magazines carrying more than 10 rounds are beginning to show up.

Sixth, guns are being totally banned from some “sensitive” places, like school buildings and other sites open to the public.

Seventh, when government controls on guns are challenged in court, the limitations do not have to pass the most demanding constitutional test, but get by if they can satisfy more tolerant judicial standards.

Eighth, gun shows are sometimes being banned from public recreation areas, like city parks.

Ninth, the National Rifle Association, as a defender of gun rights, does not have the same clout in the courts as it does in Congress or in state legislatures. In fact, having its name attached to a lawsuit challenging a new law does not appear to make any difference.

Tenth, some courts are beginning to define more narrowly the kind of weapons that are being given Second Amendment protection. Stun guns and martial arts weapons are among the kinds that have been found outside that Amendment’s umbrella.

Even amid that array of judicial results, mostly on the side of controls, the continuing reality is that there are very well financed organizations – like the NRA – that stand ready to mount new challenges to any new restriction. Although the Supreme Court has not been involved in actually producing new rulings, it does seem inevitable that at some point the Justices will sense a need to add some clarity and, perhaps, finality. There apparently will be plenty of opportunities – including some challenges to the new administrative steps that President Obama has just taken to tighten existing federal restrictions.