Gun Fight, Revisited
By Joan Indiana Rigdon

It has been almost a year since the Supreme Court ended centuries of contradictory jurisprudence and scholarly debate by ruling, in District of Columbia v. Heller, that the Second Amendment right to keep and bear arms is at its core an individual right unconnected with militia service.

In that decision, the Supreme Court struck down the District’s 32-year-old handgun ban, which had stood out as the strictest in the land. The ban had prevented almost all of the District’s residents from owning handguns, and further, prohibited them from keeping any firearms of any sort in their homes—unless they were disassembled or disabled with a trigger lock. In other words, D.C. residents were not allowed to use guns in their homes for any purpose, including self-defense.

Within 48 hours of the Court’s decision, the National Rifle Association (NRA) and other gun rights advocates began challenging state and local gun bans across the nation, from Chicago, where the city and some suburbs had enacted handgun bans similar to the one struck down in the District, to San Francisco, where the city’s housing authority had used a lease provision to ban guns from public housing.

Some jurisdictions have already rewritten their laws in advance of, or in response to, legal challenges. The San Francisco Housing Authority, for one, scrapped its lease provision after groups led by the NRA sued, citing Heller.

Meanwhile, on February 26, 2009, just before the U.S. Senate approved the D.C. Voting Rights Act, Senator John Ensign, a Republican from Nevada, managed to append an amendment that would gut much of the District of Columbia’s rewritten gun control ordinance. Under the rewritten ordinance, residents may own registered handguns and keep certain loaded firearms in their homes for the purpose of self-defense, as long as the guns aren’t accessible to minors, in which case the guns must be locked in a box or safe place.

Ensign’s amendment would let stand the District’s current restrictions on carrying guns outside the home, but it would nix all of the city’s registration requirements. That would allow any resident of any age, including children, to possess guns, and it would lower the age of those who may buy guns to 18, from the previous threshold of 21. The Ensign amendment would also allow the purchase of more types of guns, including armor-piercing rifles. At press time, the Senate and House were still considering the amendment in conference.

If enacted, “the District would move from having one of the strictest gun laws in the country to having one of the most laissez faire,” says Walter Smith, executive director of DC Appleseed Center, a nonprofit that advocates for home rule, and which had been active in supporting the District’s handgun ban.

“Of course, the great irony of combining the voting rights advance in the same bill with the gun control retrenchment is that the whole purpose of giving us the vote is to give us a say in laws that apply to us, and to curtail Congress’ overturning of local laws duly enacted by duly elected D.C. officials,” Smith adds.

“It would be really tragic if the price of the D.C. voting law is more dead kids in the District of Columbia,” says Dennis Henigan, vice president for law and policy at the Brady Center to Prevent Gun Violence. “It was a cynical move on the part of the gun lobby to mix these two issues when they shouldn’t be mixed at all.”

Alan Gura of Gura & Possessky, PLLC, the lawyer who helped craft Heller and argue it before the Supreme Court, believes that even if the Ensign amendment is stripped from the voting rights bill in conference, “They have the votes to do it as a stand-alone. It passed the House last year. Now they have 62 votes in the Senate. I think it’s something that could come up independent of the D.C. voting rights bill.”

Henigan says nine of the Senate votes were cast by members who had previously upheld other gun control measures, and that these senators may have felt the Ensign amendment was “an easy one to give to the gun lobby” with the expectation that the amendment would die in conference.

Gura disagrees. “Clearly, there’s a sense in Congress that D.C.’s laws are inappropriate, and that D.C. is not responsibly using its legislative authority in this area,” he says.

The National View
As events continue to unfold in the District, spring brought with it three more mass shootings, one where a man who kept lists of his enemies killed 10 people in and near Samson, Alabama; one at a North Carolina nursing home where the gunman killed seven elderly patients and one nurse in four minutes; and one at an immigration office in Binghamton, New York, where the gunman used two handguns to kill 13 people in a little more than a minute, before killing himself.

As expected, these shootings have brought calls for stricter gun control, along with the expected response that if more law-abiding citizens carried guns, they could better defend themselves against armed criminals.

Though some had worried that a decision in Heller’s favor would undermine gun control laws nationwide, the Supreme Court made clear in its decision that it intends for many current restrictions on guns to continue. Writing for the Heller majority, Justice Antonin Scalia took pains to spell out that an individual right to bear arms is not absolute. “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” he wrote.

Surprising many, the majority decision went on to opine at length on what sort of restrictions the Court expects will remain on the books. Prohibitions on concealed weapons had previously been upheld as constitutional under the amendment, Scalia noted. What’s more, “the Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of fire-arms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. …” he wrote.

Of the 64-page decision, this single paragraph has garnered the most attention. “It is the most important paragraph in the Heller decision. While the decision goes on and on for pages about the individual right to bear arms, at the end of the day the Court basically fudges, and says, ‘Of course we don’t mean to call into question restrictions on concealed guns or guns owned by felons, or guns owned by the mentally ill, or guns in certain places, or commercial sales of guns…’ You could fit the vast majority of gun control laws into those categories,” says Adam Winkler, a University of California, Los Angeles (UCLA), professor of constitutional law, who has written extensively on the Second Amendment.

There has been a lot of speculation on why the majority felt compelled to write that controversial paragraph. It didn’t do it to get Justice Anthony M. Kennedy’s vote, because it was clear that he supported the right to keep and bear arms, Winkler says. “In oral arguments, he stated his view. They didn’t need to get his vote for the basic questions. But they might have needed his vote to come up with a five-person majority opinion, rather than having him do what he often does, which is write a separate opinion disagreeing with what most of the majority says.”

Another possible inspiration for the controversial paragraph was Scalia himself. “Scalia is a big statist. And a judge who believes in gun rights and who believes in state powers is not going to say there’s an individual right to bear arms” that cannot be restricted by the states, Winkler says.

United States v. Hayes
If there was any doubt about the Supreme Court’s support for gun control laws in the wake of Heller, that doubt was allayed in late February, when the Court issued a 7–2 decision in United States v. Hayes. That decision upheld the Federal Gun Control Act’s 1996 Lautenberg Amendment, which bars convicted felons, and those convicted of misdemeanors involving domestic violence, from possessing firearms.

The case itself hinged on statutory construction—specifically, whether the Lautenberg Amendment could also be applied to those convicted of misdemeanor generic battery, if the battery was committed against someone with whom the attacker had a domestic relationship. The Court ruled that the law could be applied that way.

Henigan says Hayes is significant for two reasons. First, the 7–2 majority, with only Chief Justice John G. Roberts Jr. and Justice Scalia in the dissent, means “You have a number of justices who were in the majority in Heller who join the majority here to give a broad reading to a very important gun control law,” he says.

Even more significant, Henigan adds, is the fact that the Court could have used Hayes to question the constitutionality of depriving misdemeanants of their Second Amendment rights, but it didn’t.

“Not one of the lawyers nor any of the justices even brought up Heller in this case. … Saying nothing about the Second Amendment in this case implicitly suggests that there is no constitutional right for persons convicted of violent misdemeanors to have a gun,” Henigan says.

The Slippery Slope?
Even before Hayes, proponents of gun regulation were arguing that Heller would actually make it easier to pass gun regulations. “We think that there is actually a political benefit from having handgun bans, as Scalia put it, ‘off the table.’ We think it makes it much harder for the gun lobby to use the fear of an eventual gun ban, or eventual gun confiscation, to motivate gun owners to oppose much more moderate controls, which polls show most gun owners actually support,” Henigan says.

Before Heller, the gun lobby had successfully opposed gun regulations by saying that any regulation at all is a step onto a “slippery slope” that leads to an outright ban, Henigan says. Heller “allows a reframing of the gun control issue in a way that’s very favorable to proponents of stronger gun laws,” he adds.

Bob Levy, chair of the board at The Cato Institute, a libertarian think tank, and a cocounsel for the defense in Heller, dismisses his adversaries’ slippery slope argument and questions the idea that gun rights advocates lost anything in the writing of the Heller decision.

“We challenged three laws,” Levy says, referring to the District’s bar on handgun registration; the part of its licensing requirement that prohibits unlicensed firearms in the home; and its requirement that guns in the home be disabled by a trigger lock or other means. “The court gave us 100 percent of what we were after,” Levy says, by striking down the bar on registration and the trigger-lock requirement, while allowing the licensing requirement to continue, as long as it is it not enforced in a capricious way.

“If that’s a hidden defeat, we’ll take it,” Levy says.

Gura, Levy’s cocounsel, is also representing the plaintiffs in McDonald v. City of Chicago, which challenges the constitutionality of Chicago’s handgun ban. Gura strongly disagrees with the Brady Center’s analysis of the political implications of Heller.

“I would say this. There are people on the other side of the issue who are in denial. They’re in denial about the fact that the Second Amendment is a real and meaningful part of the Bill of Rights. They’re wrong. The fact is, that while there are many questions that have yet to be answered, the opinion makes it clear that it’s a real part of the Bill of Rights, and it’s going to have some teeth when it’s applied.”

Heller’s Impact on Federal Law
So far, Heller has had minimal impact on federal gun regulations. According to a spreadsheet that Winkler is using to track challenges to federal gun control laws in the wake of Heller, as of late February, courts across the country had handed down decisions in 90 such cases. In all but two of those cases, the challenged federal gun law was upheld.

“Courts are systematically upholding gun control laws,” UCLA’s Winkler says. The upheld laws include “laws that we would almost certainly expect to be upheld, including bans on possession by felons, drug users … bans on machine guns, bans on sawed-off shotguns.

“It’s no surprise that the courts are not opposing those types of laws which target the most violent types of offenders and weapons,” Winkler says. More surprising, he says, is the fact that courts have also upheld bans on the possession of firearms by misdemeanant domestic abusers and those under domestic abuse restraining orders.

Both federal gun regulations that were struck down since Heller are related to the firearms possession clause of the Adam Walsh Act, which Congress passed in 2006 to protect children from child abuse, child pornography, sexual abuse, and violent crime. Under the act, child pornography defendants may not possess firearms.

In both cases—United States v. Kennedy in the U.S. District Court for the Western District of Washington and United States v. Arzberger in the U.S. District Court for the Southern District of New York—courts found that in light of Heller, the act’s firearms clause is a violation of due process. “Interestingly, neither of [these cases] say that the law is unconstitutional under the Second Amendment,” Winkler notes.

The take-away, Winkler says, is that “Yes, there’s an individual right to bear arms. But in the wake of that, gun control laws are surviving left and right.”

An Outdated Precedent
Technically, Heller has no effect on state or local gun laws, because the Second Amendment has never been incorporated against the states.

That’s no accident. Levy, who helped design and pay for the litigation of Heller and its antecedent case, Parker v. District of Columbia, says he and Gura wanted a case based in the District, a federal enclave. “We did that specifically to avoid the incorporation issue. We wanted a plain Second Amendment case, where the Court didn’t have anything else to deal with. It would have complicated things immeasurably” if the court had had to deal with incorporation, Levy says.

The complicated issue of incorporation began shortly after the Fourteenth Amendment was ratified in 1868, when the Supreme Court rejected the idea that the amendment’s due process clause required the incorporation of the entire Bill of Rights against the states. Instead, through a series of cases, starting with the incorporation of the takings clause at the turn of the 20th century, the Supreme Court individually incorporated part or all of many of the amendments that comprise the Bill of Rights. The First, Fourth, and Sixth Amendments were fully incorporated; the Fifth and Eighth were incorporated in part.

But the Supreme Court hasn’t taken up the issue of the incorporation of the Second Amendment since 1876, United States v. Cruikshank, before the incorporation doctrine began.

In Cruikshank, three white men were convicted of lynching two black men as part of the 1873 Colfax Massacre, which itself followed clashes between blacks and whites over who had won various elections, from the governorship on down, in Louisiana’s state elections of 1872. The defendants were found guilty on many counts, including conspiring to deny citizens of their First Amendment rights to peaceably assemble, and of their Second Amendment rights to “keep and bear arms for lawful purposes.”

Cruikshank is most remembered for its effective gutting of the Fourteenth Amendment through its finding that while the amendment prevents states from infringing on citizens’ fundamental rights, it does not prevent individuals from infringing on each others’ rights.

But in the current debate over gun laws, the most important part of Cruikshank is its finding that the Second Amendment was not incorporated against the states. The Second Amendment’s declaration that the right to keep and bear arms shall not be infringed “means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government …” the Cruikshank majority wrote.

The Cruikshank Footnote
The Heller majority sidestepped the issue of Second Amendment incorporation in a footnote, saying the question was not presented by the case. In the same footnote, however, Scalia questions Cruikshank’s “continuing validity on incorporation,” noting that Cruikshank “also found that the First Amendment did not apply against the states and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases.”

Since Cruikshank, the Court has twice reaffirmed that the Second Amendment is not incorporated, in 1886 in Presser v. Illinois and in 1894 in Miller v. Texas.

UCLA’s Winkler says the Supreme Court made the correct decision when it declared it would not address the issue of Second Amendment incorporation. But he adds that Scalia’s footnote “was a signal inviting litigants to raise the question in the second round of cases, an invitation that has been taken up by Alan Gura, the NRA, and others.”

The footnote is one of three major signs that the majority is favorably inclined toward incorporation, Winkler says.

The second sign is, “The Court goes on at length about how the right to keep and bear arms was important to the framers. Those are the same things the court is going to look to in determining whether the right is incorporated against the state. Is it a fundamental right? Is it something long essential to American liberty? It seems from the language of the [opinion] that they thought of the Second Amendment and the individual right to bear arms as the same kind of right that the First Amendment is and the Fourth Amendment is,” Winkler says.

Finally, there’s history of the drafting of the Fourteenth Amendment. “One of the primary concerns that motivated the drafting of the Fourteenth Amendment was protecting the freed men and their right to bear arms. Recalcitrant whites in the South were invading black communities to disarm the newly freed and the newly armed blacks. These posses were a large part of the motivation for the Fourteenth Amendment. You’ll see good evidence, strong evidence, that the drafters intended the Fourteenth Amendment to guarantee the right of blacks to bear firearms to use in their defense against marauding white hordes,” Winkler says.

“While I think that the evidence for an individual right to bear arms as part of the motivation for the Second Amendment, by drafters of the Second Amendment, is somewhat in doubt, the evidence is much stronger that the drafters of the Fourteenth Amendment thought that the Second Amendment protected the individual right to bear arms and sought in the Fourteenth Amendment to protect that right to bear arms,” Winkler adds.

He won’t go so far as to predict incorporation. “I told all my students that the Supreme Court is never going to take this case ... referring to Bush v. Gore, so I won’t say [incorporation] is a foregone conclusion. But if I were a betting man, I’d be putting all my chips on that. I think there’s a really good chance they’ll take it. When they do, I think it’s a very strong likelihood that they’ll find it incorporated against the states.”

Levy and Gura fully expect that outcome. “For the First and Fourth Amendments and all that to be incorporated and the Second not doesn’t make any sense,” Levy says.

Adds Gura: “It’s obviously the correct answer. There’s really no argument against incorporating.”

Paul Rothstein, professor of constitutional law at the Georgetown University Law Center, disagrees. He notes that the last time the Supreme Court incorporated an amendment against the states was in 1961, when it incorporated the Fourth Amendment, in Mapp v. Ohio.

“This is a different Court. This is a more of a state rights-oriented Court. I think the question [of Second Amendment incorporation] will come up and may come up shortly. And the Supreme Court may take it. But I’m not going to say which way it would go, because this is a different Court than the one that decided Mapp v. Ohio.”

He adds, “This is a pretty literalist Court. They may well say there’s no limitation” on states posed by the Second Amendment, since the Fourteenth Amendment reads ‘Congress shall make no law.’ However, “If those who like to read the words very literally went out, this would be incorporated against the states,” he says.

Nordyke v. King
Several pending cases raise the incorporation issue. But the one that is farthest along, and could seek certiorari first, is Nordyke v. King, which was first filed a decade ago in the U.S. District Court for the Northern District of California.

The plaintiffs, led by Russell and Sallie Nordyke, had been promoting gun shows on county fairgrounds since 1991 in Alameda County, California. In 1999 the county passed an ordinance making it a misdemeanor to posses guns or ammunition on country property, following a July 4, 1998, shooting that injured nine people on the fairgrounds during the county fair. [note: The gunfire did not take place during a gun show, as was previously reported.] The Nordykes sued for a temporary restraining order, saying the county ordinance was preempted by state gun regulations, and that the county ordinance also infringed on their First Amendment rights of free expression.

The District Court ruled against the Nordykes. On appeal in 2000, the plaintiffs expanded their suit to allege that the county ordinance also infringed on their Second Amendment rights.

In 2003 the U.S. Court of Appeals for the Ninth Circuit ruled that the plaintiffs did not have standing to bring a Second Amendment challenge, because they are individuals, and according to the court’s previous finding in Hickman v. Block, the Second Amendment guaranteed only a collective right.

The appeals process continued for years. Then, last year, after Heller was decided, the court asked for additional briefs on the implications of that case. The Ninth Circuit heard oral arguments on January 15, 2009, on several questions, including whether the Second Amendment should be incorporated against the states.

The Chicago Cases
Meanwhile, three Second Amendment cases are wending their way through the Seventh Circuit: one filed by the Second Amendment Foundation, McDonald v. City of Chicago; and two filed by the NRA: National Rifle Association of America v. Village of Oak Park and National Rifle Association of America v. City of Chicago. The cases challenge handgun bans in Chicago and its surrounding suburbs, thus raising the issue of Second Amendment incorporation. The cases are being consolidated on appeal.

Winkler, the UCLA law professor, thinks that if the Supreme Court wants to take up the issue of Second Amendment incorporation, it is more likely to grant cert to the Chicago gun cases than to Nordyke.

If they take up the Chicago cases, they only have to address the incorporation question. They don’t have to get into the messier question that’s posed by the Ninth Circuit, which deals with guns on public lands.

“States have extensive powers to regulate … exercise of constitutional rights on public lands. Government’s power to regulate constitutional rights on public lands is much more extensive than it is to regulate individuals’ rights in the privacy of their own homes,” Winkler says.

He adds, “The Seventh Circuit case is much cleaner. It’s easier, based on the ruling and language of the Heller case to address the Seventh Circuit case.”

Don Kilmer, a Santa Clara County, California, civil rights lawyer who represents the plaintiffs in Nordyke, thinks the cases could be combined. “If [the Ninth Circuit] punts or rules against us on the First Amendment and rules for us on the Second Amendment, and then of course, if the Seventh Circuit says ‘no’ on incorporation, I can see Nordyke being rolled up into a group of cases with the Chicago cases. That’s exactly what happened in a lot of civil rights cases in the 50s and 60s.”

Sayre Weaver (pronounced Sare), of counsel at the Los Angeles firm Richards, Watson & Gershon, represents Alameda County in Nordyke. She is also the legal director for the Educational Fund to Stop Gun Violence, based in the District of Columbia, and has defended, and, in some cases, helped write California’s gun regulations since the mid-1990s. Weaver doubts Nordyke will be combined with the Chicago cases because there are too many other more likely possibilities.

For instance, “Let’s suppose that the Ninth Circuit decided to reach the incorporation issue and decided the Second Amendment should be incorporated,” Weaver says. If that happened, she expects the court would also find that the Alameda County ordinance “doesn’t implicate the Second Amendment because it falls within two of the categories that the [Heller] court specifically set forth as presumptively valid: regulation of sensitive places and, to the extent that the Nordykes are challenging the ordinance’s impact on gun shows—they’ve always challenged on the negative impact it has on sales of guns—regulation of commercial sales.”

In that scenario, “We’d win on the merits. Then it would be up to my client whether or not my client wanted to do anything further with respect to the holding on the incorporation argument. In that instance, even if the Nordykes wanted to petition for certiorari on the merits, that doesn’t seem to me that it would raise the same issue as the Chicago handgun ban case. There are very different things going on in these two cases,” Weaver says.

Lower courts are bound by precedent even when they believe those precedents will soon be overturned by the Supreme Court. That is the stance they are taking on Second Amendment incorporation so far. Last December, in the NRA’s two Chicago gun cases, the U.S. District Court for the Northern District of Illinois Eastern Division issued an opinion saying it could not reach the merits because the Second Amendment is not incorporated, according to Seventh Circuit precedent based on Presser.

The Brady Center’s Henigan believes the Ninth Circuit will render a similar decision with regards to the Second Amendment issue posed by Nordyke. “The likely outcome is that they will hold it as not incorporated because they are bound by that old Supreme Court precedent,” he says. “That creates the possibility of cert and the Supreme Court actually taking that case in order to decide that incorporation issue.”

Self-Defense, Chicago Style
Although the Chicago gun ban has often been described as very similar to the one that the Heller decision struck down in the District, Winkler says there is a major difference: unlike the District, Chicago did not prevent its residents from using long guns (shotguns, for instance) to defend themselves in their own homes.

In Heller, the Supreme Court says the Second Amendment is “designed especially to protect the right of self-defense,” Winkler says. “Chicago doesn’t deny its citizens the right to protect themselves with a firearm. But D.C. did something else. D.C. banned you from using a long gun in self-defense.” Under the former law, “You can’t assemble the firearm or take off its trigger lock, and as a result, if a murderer or rapist is climbing through a window and you’ve got your shotgun handy, you’re not allowed to take the trigger lock off of it to defend yourself.”

In Chicago, however, “You could have your shotgun or rifle loaded next to you in your bedroom and use it in self-defense.”

Henigan doesn’t believe this difference will help protect Chicago’s law. “The Court made it clear in Heller that even if all the D.C. law had done was ban handguns, it would have been unconstitutional. And Chicago does ban handguns.”

Handguns vs. Long Guns
Weaver believes the Heller majority incorrectly tied together the idea of self-defense in the home with a particular type of gun, a handgun.

“The core decision here is that a law-abiding citizen has a right to possess a firearm in the home for self-defense. Why does it have to be a handgun, just because the court said it’s the most popular weapon?” she asks.

Weaver says a long gun would make more sense, because it renders a more accurate shot and, according to various studies, is statistically less likely to be used against the residents of its household than a handgun. “The right of self-defense is not just exercised by the head of household. It also pertains to the spouse and the children in the home. And there is substantial evidence that a handgun in the home makes those people less safe,” Weaver says.

Rather than have the courts decide which types of guns should be used in self-defense, Weaver believes those types of decisions should be left up to local lawmakers.

“Do we really want to be second-guessing legislatures about what type of firearm is not banned from home possession? As long as the legislature does not completely ban all firearms for use in the home, why would the court want to be second-
guessing legislative decisions with respect to that? How is the core right of self-defense in the home infringed upon by it being a long arm versus a handgun, if the legislative body has lots of good evidence before it [showing that long arms are safer than handguns]?” Weaver asks.

“It would seem at least logical to conclude that a right to self-defense of the hearth and home could be equally protected by a possession of a rifle in the home, regardless of what the majority’s opinion is of what is the most popular current firearm. Surely we don’t want to go down the road of every time there’s another firearm that becomes more popular,” redefining Second Amendment rights accordingly, she adds.

A Standard of Review
In Heller, plaintiffs asked the Court to adopt strict scrutiny, the highest level of review, as the standard by which courts will decide whether gun control laws are reasonable. Defendants asked the Court to consider rational basis, the most lenient level of review.

The Court rejected rational basis and mulled strict scrutiny, but it didn’t adopt it.

“We would strongly oppose the application of that standard,” Henigan says of strict scrutiny. “And we believe that the majority in Heller implicitly rejected that standard. Lawyers for Heller aggressively pushed that standard. They argued that strict scrutiny is precisely the standard that should be applied. But the court did not expressly adopt any standard.”

Gura says the Court didn’t adopt strict scrutiny simply because “Heller didn’t require the Court to tell us what the standard of review was.”

However, he believes that eventually, the Court may adopt some type of strict standard because the Second Amendment is an enumerated right, “which means it’s part of the Constitution that’s going to get meaningful review” of laws that restrict it. “Whether that’s strict scrutiny or undue burden or some other flavor, we don’t know, but it’s clearly going to be some type of meaningful test,” Gura says.

Kilmer says supporters of gun regulations are unreasonably worried by the strict scrutiny standard. “There are plenty of instances in First Amendment law, where as long as it’s not content regulation of speech, the government has power to regulate time, place, and manner. You have parade cases, petition gathering in public forums. The government can’t allow people who control public property to say, ‘We’ll allow petition gathering for Democrats, but not for Republicans. But they can say everybody who does gather shall do so only between the hours of 8 and 5 and not block public sidewalks.

“There clearly is a way, even under the strict scrutiny standard, for common-sense regulation of ways of exercising” constitutional rights, Kilmer says.

DC Appleseed’s Smith points to Justice Stephen G. Breyer’s dissent, which declares that the majority “implicitly and appropriately rejected” strict scrutiny. Breyer suggested intermediate scrutiny instead.

If the Court does adopt intermediate scrutiny, Smith is hopeful that “the Court may also do what it has always done when it comes to public safety issues, and that is give great deference to the expertise and fact-finding capacity of local, elected legislators. I still think the Court may end up, when it reviews all of these gun control regimes, it may give a lot of deference to decisions made by local legislators, even if it applies an intermediate standard,” Smith says.

“How that’s all going to work out in practice, we don’t know yet,” he adds.

Weaver doesn’t think the Supreme Court should choose between strict scrutiny, intermediate scrutiny, or rational basis. Instead, she says, it should look back on how it has handled some First Amendment cases. And realize that “We often look at this with respect to the core right and analyze whether the regulation at issue really infringes that core right,” she says.

Henigan says he is not worried about what standard the Court adopts. Again, he points to the part of the decision that enumerates gun control regulations upon which the Court does not want Heller to cast doubt. “From our point of view, that’s better than any particular standard,” Henigan says. In that paragraph, “the Court has effectively protected from constitutional attack basically our entire agenda.”

Freelance writer Joan Indiana Rigdon wrote about the D.C. gun ban in the July/August 2007 issue of Washington Lawyer. She wrote about government transparency in the February 2009 issue.