In a pair of blockbuster decisions, one issued two years ago and the other earlier this week, the U.S. Supreme Court has struck down two handgun bans. In doing so, the Court has rediscovered the Second Amendment of the U.S. Constitution and, in particular, has advanced an important new perspective on an individual’s right to keep and bear arms. The National Rifle Association is thrilled; gun control advocates are sullen; and state and local public officials are nervously awaiting an avalanche of litigation while also contemplating policy responses in light of these decisions.
The gun case twins (Heller and McDonald are the names of the 2008 and 2010 rulings) are really triplets. After all, the Supreme Court issued a significant decision 15 years ago in a case arising out of San Antonio, United States v. Lopez, holding that Congress had exceeded the scope of its constitutional powers under the commerce clause of the Constitution by enacting a ban on guns near school zones. What Lopez adds to the gun rights mix is this: The development of constitutional standards to determine the proper scope of gun regulation will principally be the responsibility of state and local governments, not Congress. Constitutional scholars have argued that a national consensus will likely emerge following a period of litigation in state and federal courts and some inevitable trial-and-error by local governments. But such a consensus is possible only upon two assumptions, both questionable: First, that the Supreme Court can provide the sort of clear guidance through its occasional forays into the gun rights struggle and, second, that state and local governments will responsibly develop guidelines in light of judicial doctrine and by their own best assessment of what the U.S. Constitution, and respective state constitutions, permit and proscribe.
The experience of state and local governments with other deeply divisive policy matters in recent decades — including abortion, eminent domain, and voting rights — should give us grave doubts about the plausibility of either of these assumptions. Divisions in the Court and the difficulties, even under the best circumstances, in generating a cohesive set of illuminating guidelines for government officials to follow, will plague judges in developing doctrine. Moreover, pity those elected state and local officials forced to wade deeply into impending legal controversies — this on top of the ubiquitous political controversy that always accompanies gun control policymaking.
The Supreme Court’s decision in the Lopez case, though a decade-and-a-half removed from these current gun rights controversies, is particularly relevant here. The availability of a nationwide standard imposed by Congress is not possible; these are, said the Court in that decision, matters properly left to state and local governments. Whether the Court would have thought the same if they could have foreseen the historic turn toward an individual right to keep and bear arms under the Second Amendment is an interesting, but not especially pertinent, question.
What is pertinent, and very important, to the unfolding controversy over the constitutionally acceptable scope of state and local handgun regulation (the New York City law being likely the first one waiting in the wings) is this question: How can public officials, each powerfully influenced by interest groups on each side of this matter, rise up to do the right thing for their community while also facilitating the kind of interlocal dialogue that will help yield a valuable, coherent solution to a problem of national consequences and import?
Daniel B. Rodriguez is the fellow in law and urban economics at the Baker Institute. He is also the Minerva House Drysdale Regents Chair in Law at The University of Texas at Austin.