Will a Shifting Supreme Court Change the Consensus on ‘Common-Sense’ Gun Laws?

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A rightward-leaning Supreme Court could shift the legal consensus established a decade ago by the District of Columbia v. Heller ruling  and “imperil sensible gun laws that Americans need and broadly support,” a leading advocacy group warns.

In a review of litigation since the 2008 High Court ruling, the Brady Center to Prevent Gun Violence said Heller effectively upheld the Second Amendment guarantees that “law-abiding, responsible Americans” have the right to possess guns in their homes for self-defense—even if they do not belong to armies or militias. But at the same time, the ruling made clear that the right was not unlimited.

The two elements of the ruling have given encouragement to both sides of the gun debate, said the Brady Center.

While gun control advocates have interpreted the ruling as establishing that the right to bear arms is not a constitutional bar to “common sense gun laws,” pro-gun groups such as the National Rifle Association (NRA) considers the ruling as an affirmation of unrestricted gun ownership rights.

Nevertheless, over 90 percent of the 1,000-plus legal challenges to gun laws and gun crime prosecutions in the ensuing decade in state and federal courts were rejected, the report said.

“The courts have repeatedly held that Heller does not provide a basis to overturn bansd on the public carry of firearms, assault weapons, and large capacity magazines,” the study said.

“They have also overwhelmingly held that Heller allows for reasonable restrictions on dangerous people possessing and owning firearms, and has upheld safety regulations regarding firearms training, storage, and design.

“These rulings make clear that the Second Amendment is no impediment to enacting the strong, sensible gun laws that Americans want and need to reduce the epidemic of gun violence that injures or kills more than 100,000 people in the United States every year.”

Pointing out that the only thing preventing enactment of common-sense gun laws is “political will,” the study warned that the status quo established by the Heller ruling was now endangered by shifts in the Court.

“There is also a real concern that a new composition of the Supreme Court, molded from appointees of President Trump, could extend the reach of Heller and the Second Amendment far beyond what its original authors intended and imperil,” the study said.

“A future Second Amendment case before a more conservative Supreme Court could yet again substantially alter the Second Amendment landscape.”

Contributing authors to the study, include Joshua Scharff from the Brady Center; Anna M. Kelly and Madeleine Bech from Hogan Lovells; and Suzan Charlton and Joseph DuChane from Covington & Burling, LLP.  Zayden Tethong, Caitlin Nelson, and Jenna Casolo from the Brady Center provided research assistance.

The full report, entitled “10 years later: The Second Amendment and Public Safety After Heller,” can be downloaded here.

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