CHAMPAIGN, Ill. – The long-debated question over the right to bear arms remains unsettled despite a U.S. Supreme Court ruling that extends Second Amendment guarantees to state and local gun-control laws, a University of Illinois legal expert says.
Lawrence Solum says Monday’s 5-4 decision ruled only that constitutional protections trump far-reaching gun-control measures, such as a handgun ban enacted by the city of Chicago.
But he says the ruling provides no guidance to lower courts on how to handle challenges to state and local laws that are less restrictive than handgun bans, such as regulating commercial sale of firearms or prohibiting possession of guns by felons or the mentally ill.
“It seems almost certain that the lower federal courts will apply a variety of inconsistent standards,” said Solum, a constitutional law expert. “That means that the Second Amendment will surely return to the Supreme Court in the next two or three years as these cases work their way through the system.”
He says the high court ruling was expected, coming almost exactly two years after another 5-4 ruling that the Second Amendment protects an individual right to own guns in the District of Columbia, where the federal government has ultimate authority over laws.
Monday’s ruling extends that protection to overreaching laws imposed by state and local governments.
But even the majority was divided in its rationale behind the ruling, said Solum, who also is a professor of philosophy at the U. of I.
Four of the five justices in the majority based their ruling on the due process clause of the 14th Amendment, a post-Civil War amendment that has been used to make most of the Bill of Rights applicable to the states, he said.
Associate Justice Clarence Thomas, the crucial fifth vote, rejected that theory, instead concluding that the Second Amendment applies to states under the 14th Amendment’s “privileges and immunities” clause.
Many constitutional scholars had hoped the court would revise its approach on applying constitutional protections to states by siding with the “privileges and immunities” clause, which says “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
There is evidence that the clause was written specifically for firearm rights, to allow freed slaves to have guns to defend themselves, according to research by legal historians.
Solum says Thomas’ understanding of the legal history appears to be heavily influenced by the work of legal scholar Kurt Lash, who will join the U. of I. College of Law this summer.
“Although the bottom line was no surprise, there are some interesting and even surprising wrinkles and twists produced by the five separate opinions written by the justices,” Solum said.
