Last week was the first anniversary of the District of Columbia v. Heller, where the Supreme Court for the first time declared that the Second Amendment indeed protects an individual right to own guns in the home for self-defense. It was a great victory for individual rights, but by no means a final one.
The lawyer who successfully argued that case, Alan Gura, has remained a dedicated opponent of all sorts of gun regulations that still stand post-Heller. Senior Editor Brian Doherty talked to Gura by phone earlier this week about the various legal challenges Gura is fighting against state and local gun laws. (The Second Amendment Foundation is backing all of the challenges where Gura is serving as counsel.)
Alan Gura: The city of Chicago has a handgun ban identical to the one D.C. had until Heller. Chicago requires registration of all guns and does not register handguns. We were challenging that and other provisions of Chicago law, like requiring re-registration annually. They make guns unregisterable forever if you forget to renew. But the lower courts rejected our case, believing that, or at least asserting that, they were bound by ancient 19th-century precedent that held that the Second Amendment was not directly applied to states.
Now, the 14th Amendment has been interpreted for over a century as meaning that states do have to obey most of those rights [in the Bill of Rights], that they have been incorporated through the 14th. The Supreme Court advised in Heller quite specifically that ancient cases [about the Second Amendment's application to the states] may not have much value now, that they did not contain the sort of analysis required by courts now.
But lower courts [in McDonald] did not engage in any of the required analysis. They just fell back on old law without applying the century of precedent [changing the way the 14th Amendment is now typically interpreted]. The courts cited cases from an era when nothing was incorporated. The cases relied on by lower courts also said that the First Amendment doesn't bind states, that the Fifth Amendment doesn't, that the Fourth Amendment doesn't. That is clearly not the legal environment we have been in for the last 100 years. The lower courts claimed they were being faithful to the Supreme Court; I disagree. I think that is not true. They clearly did not apply and ignored the required incorporation analysis [of the 14th Amendment] in effect for quite some time, and I believe the Supreme Court will reverse.
I feel confident they will take the case, as there is now a circuit split [on the question of Second Amendment incorporation] and it's a very important issue and a very compelling case. When the Supreme Court reconvenes in October they will consider various petitions, including ours, and I expect sometime in early October they will grant certiorari.
Reason: Another of your recent cases, Hanson v. D.C., already succeeded in making D.C. further adjust its gun laws, right?
Gura: That is correct. Even after Heller, Washington D.C.'s city council in their incredible hostility to Second Amendment rights went around looking for things to do to gun owners and found this California regulation that D.C. adopted as its own. It's a list of "approved" weapons, listing all those that are going to be allowed for sale and banning guns that aren't on the list.
Unfortunately for D.C. we have a Second Amendment in our Constitution, and the Supreme Court told us in Heller what the test for inclusion on any "list of approved guns" should be. It's any gun a law-abiding citizen wants that is in common use that they use for law-abiding purposes. Any such gun can't be banned entirely. California's list has arbitrary requirements applied so they lead to absurd results. So when D.C. adopted that list for itself, we filed a lawsuit challenging that as unconstitutional.
Tracey Hanson [one of the original plaintiffs in the Heller case] wanted to register a gun in D.C. and was denied because it was in the wrong color! The same identical gun is on California's list in other colors, but it could not be submitted to the list in a bi-tone version that Tracey had because by the time that color came out California was demanding that guns have certain features that gun didn't have.
Gillian St. Lawrence [another plaintiff on the case, and another original Heller plaintiff] wanted to register a handgun that California had determined was safe and fine for people to use, but the gun manufacturer stopped paying the annual listing fee [that California requires to keep a gun on its list] since the model was discontinued. Now, there's no allegation that there's anything wrong with the gun. It was a purely bureaucratic removal. I don't think that it's appropriate to deny people access to a gun just because the manufacturer hasn't paid a fee.
Paul St. Lawrence, Gillian's husband, tried to register the same kind of handgun at issue in the Heller case. This handgun being somewhat old, not manufactured anymore, so no one pays to get it listed, so it can't be put on the list. The same gun the Supreme Court ordered D.C. to have registered wound up being banned in D.C. five months later.
The city realized they could not defend this crazy law. They expanded the list in such a way that it pretty much is all inclusive. They invented a new D.C. list which included everything on the California list, everything similar to ones on the California list, everything on or similar to things on similar lists in Massachusetts and Maryland, and all guns made before 1985.
D.C.'s changing its laws had the effect of mooting our case. When D.C. first proposed these laws they made all these declarations that of course [the list] is constitutional and perfectly fine. As soon as our lawsuit was filed and they had to consider its impact and what it did in real life, they realized it was indefensible. They would not have rolled over if they thought they could defend it. They did not change out of the goodness of their heart. They did it because they knew they would lose.
Reason: What other legal challenges regarding the Second Amendment are you pursuing?
Gura: We are also challenging the California list in California, where the 9th circuit recently held [in the case Nordyke v. King] that the Second Amendment does bind the states. The state might be filing its response in early July. It's called Pena v. Cid.
Also in California we filed Sykes v. McGinness, challenging the practices in two California counties denying people the right to bear arms. California is a "may issue" state when it comes to carry permits. They leave it up to local authorities to determine if they will issue carry licenses. Some jurisdictions are fairly respectful of the Constitution and give permits to people who are law-abiding, and some jurisdictions don't.
So we are suing Sacramento and Yolo counties to get their carry policies overturned. The Heller opinion makes it quite clear that "right to bear arms" includes the right to carry. The court said there will be limits on time, place, and manner on this right to bear arms. For example, you cannot carry a gun into a "sensitive place." We're still not sure what a "sensitive place" is, but if there are some sensitive places we can't carry guns into, that also means there are some non-sensitive places.
I'm litigating another case in D.C., on an obscure provision of federal law that prevents expatriate Americans from acquiring guns in the U.S. The grounds of the challenge are the Second Amendment, and also the right to travel. American citizens are allowed to keep the guns they acquired prior to leaving the U.S. and setting up residence elsewhere. But if you have residence overseas, for some reason the government restricts access to firearms when visiting the U.S. That doesn't make sense.
I can't even imagine what the safety rationale of the law is. If you already had a gun [and leave the country] you can leave it with family or friends, leave it in storage, do whatever you want with that gun, but you can't buy a new one.
Reason: Where did this law come from? What was the official rationale?
Gura: It was snuck into the crime bill revision in 1994. I have not located any extensive debate about why this was thought necessary. You try to explain it, and people scratch their heads. Most gun laws have a rationale, even if it's a bad one that we don't agree with; but they try to make the case we need this law because of this, or handguns are too dangerous—OK, that's a reason. It's not a good reason but…The government is claiming we have no standing, not even addressing it on the merits, as far as I can see. This is in U.S. District Court in D.C. We filed this case earlier in various states these individuals were traveling and the government beat us on venue grounds, claiming the only venue is Washington, D.C. So there we are.
Reason: In order to win the Chicago case if it makes it to the Supreme Court, you have to win the 14th Amendment incorporation argument. How do you go about that?
Gura: The traditional selective incorporation argument, that some rights are incorporated against states through the Due Process Clause if they have certain qualifications, and the Second Amendment meets those standards. If you read Heller, it described the nature of the Second Amendment right such that it should be incorporated under modern analysis.
What I would like the Court to do is incorporate under the 14th Amendment's Privileges or Immunities Clause. To do that would require overruling the Slaughterhouse Cases from 1873, which held that the phrase "privileges or immunities" essentially doesn't mean anything. This is an opportunity to take a whack at Slaughterhouse. We don't have many opportunities in which to get the Court to revisit what this language means, and it's important they do so.
The Slaughterhouse Cases declared pretty much that the only privileges and immunities protected by the 14th Amendment are those of national citizenship, rights that accrue out of the existence of the federal government, like the right to a passport or right to travel the waterways of the U.S. or to petition Congress.
That is wrong; that is a ridiculous analysis. We didn't fight the Civil War to guarantee the right to diplomatic protection abroad. Everyone understood at the time of the 14th Amendment's ratification that it was meant to incorporate the entire Bill of Rights plus other innumerable undefined ones; that's not an exhaustive list of rights in the Constitution. But to get that correct reading of the language to prevail, we have to get the Court to overrule the Slaughterhouse Cases.
Reason: What sort of arguments did your opponents in McDonald make that won for them in the lower courts?
Gura: Besides relying on those 19th-century precedents to claim the Second Amendment doesn't apply to them, the defendants made a host of arguments that basically were ignoring Heller. It's like they just didn't believe Heller really came out the way it did and is the law of the land. They are in complete denial of that opinion, all their arguments are contradicted by something in Heller. I understand they don't like it and disagree with it and it's their right to do so. But they need to accept it is the decision of the Supreme Court. They are not required to like it, but they are required to obey it.