underscores the extent to which even extensive statistical evidence of health risk may be insufficient to support the constitutionality of regulation of individual freedoms where Constitutional rights are concerned. D.C.'s handgun law, recognized as the nation's toughest, imposed a total ban on ownership of certain types of guns and strict limits on access to others. Less restrictive laws may survive. For example, on February 24, 2009, in its first decision concerning gun rights since Heller
, the Supreme Court upheld a federal law barring individuals convicted of crimes involving domestic violence from owning guns.9
The 7–2 decision sidestepped the opportunity to flesh out Heller's
meaning, never once even referring to the decision. This is not surprising, as it can take years before the Court returns to a landmark case such as Heller
to further flesh it out.
This is not to say, however, that the immediate effects from Heller
have not been apparent. For example, three Illinois municipalities with handgun prohibitions have already acted to rescind the bans. In California, the San Francisco Housing Authority (SFHA) reached an out-of-court settlement with the National Rifle Association (NRA) permitting residents within SFHA apartment buildings to possess firearms, reversing gun bans contained in preexisting lease terms. Furthermore, it appears that judges may be rethinking whether they can continue to force a defendant to surrender a firearm in his possession as a condition of pretrial release; prior to Heller
, this was standard practice. Some criminal defense lawyers may begin using Heller
to argue against the constitutionality of the federal “felon in possession” law, which prohibits gun or ammunition possession by most convicted felons.10
Yet, these and many other practical implications of the Heller
decision beg an important constitutional question left unaddressed by the Heller
majority: Does the Second Amendment even apply to states, or is it only a constraint on the federal government (of which D.C. is considered a part)? In 1833, the Supreme Court ruled that the Bill of Rights (the first 10 Amendments to the Constitution) applied only to the federal government,11
and two other Supreme Court cases from 187512
held that the Second Amendment specifically did not apply to the states. However, not long after these later decisions were handed down, the Court introduced a legal doctrine known as “incorporation,” by which provisions of the Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment. The Court's limited attention to the Second Amendment during the past 110 years means that the question has gone unaddressed in this context; as a result, it is unclear whether the analysis in Heller
extends to the states. Several lawsuits already have been filed by the NRA seeking to assure the decision's explicit application to state laws.
Another question raised by Heller
is the extent to which the decision permits the government to regulate firearms possession in public spaces. Although the D.C. gun ban was not directed solely at firearms in private homes, the majority opinion referenced only that aspect of the law: “[T]he District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”3
Read alongside Justice Scalia's statement that gun possession limits in places like schools would be permissible, it is possible that Heller's
reach will be ruled not to extend far beyond the front doors of private residences. This question remains open because of the self-defense emphasis reflected in the decision.
Regardless of the types of regulations that survive a Heller analysis, and irrespective of whether the Second Amendment is eventually found to apply to the states, it is evident that the decision affects the ability to rely solely on strict firearms restrictions as a means of addressing gun violence. Heller thus brings into sharp relief the need to combine the regulation of weapons and greater resources for law enforcement with preventive intervention strategies aimed at high-risk populations and communities.