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There Is No Constitutional Bar to Further Gun Control

The recent tragedy in Orlando has reignited the debate of the Second Amendment and its proper role in gun regulation.

June 15, 2016

Cross-posted from the New York Times Room for Debate

By recognizing an individual right to bear arms in overturning handgun bans in Washington and Chicago, the Supreme Court seemed to have put a heavy burden on gun control efforts. Since then, though, the court has not ruled against any such measures. Has the Supreme Court’s groundbreaking rulings on the Second Amendment impeded the success of tougher gun control measures like background checks for purchases or a ban on assault weapons that many have called for in the wake of the Orlando massacre?

There Is No Constitutional Bar to Further Gun Control

by Eric Ruben

Predictably, another tragic mass shooting is followed by invocations of the Second Amendment to remind us why we can’t have sensible gun regulation. But the reality is that the Second Amendment is rarely an obstacle to the kinds of gun restrictions reformers propose.

True, in 2008 in District of Columbia v. Heller, the Supreme Court struck down a ban on handguns in the home, recognizing for the first time an individual Second Amendment right to keep and bear arms for self-defense. Two years later, in McDonald v. City of Chicago, the court applied Heller to strike down a similar ban in Chicago.

But the Heller opinion, written by none other than Justice Antonin Scalia, went to great pains to limit the scope of its ruling. The court emphasized that the need for self-defense is “most acute” in the home, leaving open the possibility for a different standard in public. It also characterized handguns as the “quintessential self-defense weapon,” suggesting other guns might be regulated differently. Moreover, Scalia cautioned that “nothing in our opinion should be taken to cast doubt” on certain “presumptively lawful regulatory measures.” He listed a few, including prohibitions on the possession of firearms by felons and the mentally ill, and in “sensitive places.” Even the court’s relatively expansive list, Scalia explained, did “not purport to be exhaustive.” In McDonald, the court repeated Heller’s explicit limitations.

Since Heller, with few exceptions, lower courts have upheld restrictions that stopped short of handgun bans. To take one highly relevant example, judges — liberal and conservative alike — have agreed that assault weapon bans are constitutional, upholding them in the District of ColumbiaNew YorkConnecticutand Highland Park, Ill.. Judges also generally agree that it is lawful to restrict concealed carry permits to only those people who can show some heightened need for armed self-defense in public. Just last week, an 11-judge panel upheld such a restriction in California. And assault weapon bans and restrictions on concealed carry are only the most contentious Second Amendment issues. Judges also have held that background checks, safe storage requirements, age limitations and other regulations are constitutional.

Of course, these cases entail spirited briefing on both sides. Some gun rights advocates, such as the National Rifle Association, have even claimed that the judicial consensus about the Second Amendment reflects resistance to Heller. But that critique has become increasingly strained as the Supreme Court has declined to disrupt lower court rulings in more than 60 cases upholding gun regulations, stepping in to correct a Second Amendment decision only once since McDonald.

The Second Amendment, even after Heller, simply does not present as tall a barrier to gun regulation as some would have us believe. The bigger barrier is the political disagreement about how to protect the public from gun violence. If our democratic debate results in new gun regulations, the Second Amendment most likely will not stand in the way.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.