I decided to talk to Jon Mirowitz who is, not sure how to describe him since "gun nut" tends to come to mind, but he is the expert on this. Jon eats, sleep, drinks, breaths, etc. guns. The only person I know who is more fanatic is Evan Nappen (google HIM!), but he is in NJ. Jon is of the opinion that this will need to be fleshed out in the Courts, but this is only the slip opinion. The problem is that no standard has been set, which means loads of litigation. Jon pointed out that this stuff was already being litigated, as in the PA Open Carry cases.
The problem is that Scalia said that certain laws were constitutional, but will DC go to a system which makes registering a handgun more impossible than any other firearm? Also, DC had requirements on storage and inspection of the firearms, even during the "ban" phase, are those OK? I would prefer to get a better opinion than that offered by the "chattering classes". There was an interesting piece at the Blog of the American Constitution Society by Adam Winkler, Professor of Law, UCLA School of Law, who points out, as I do that the majority refused to adopt a standard of review for judging future disputes.
In Heller, the majority said that the decision is not meant “to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” The Court, once again, is trying to avoid the obvious implications of its broad statement of the right to bear arms.
The Court did not provide an indication of what laws might be undermined by the newly recognized right. Don’t be surprised if lower courts refuse to invalidate many other gun laws, citing the court’s caveat regarding not doubting longstanding laws. If so, Heller would constitute the high-water mark for the individual right to bear arms — and we’ll be writing articles years from now about the birth and sudden death of a strong Second Amendment right to bear arms.
We can also guess whether the "collective right" school is dead or dormant given that a lot of courts may give up and say that it makes more sense. That standard, after all was the rationale used for most of those gun laws. The individual right articulated by the court is worse than the collective right interpretation. As one person pointed out, DC can ban guns while Kennesaw, GA can require everyone own them since the Amendment doesn't really go either way. This standard means that not much may change except politicians can keep repeating the mantra of gun rights to placate certain segments of the population as they enact strict gun laws.
We respect your gun rights, there can't be a complete ban on firearms since that's unconstitutional!
Nope, this will only lead to loads of litigation, so the Lawyers win! Not to mention, all those who were trumpeting their victory will be eating humble pie (Ha Ha, Gene Volokh!). Guns cannot be banned, but they can be strongly regulated. From the WSJ blog The District goes back to the law that existed prior to 1976. Back in those days, people could get handguns, subject to certain restrictions. There were, for instance, restrictions on the use of ammunition, and gun owners had to register their firearms. DC has a few federally licensed gun dealers who don't sell to the public (e.g., VPC's Josh Sugarman) and very stringent zoning laws that severely restrict where explosive devices can be sold. The powers that be in the District, the mayor, the city council, the police, and a good portion of DC's populace, are still very against the sale of guns and will do everything in their power to restrict it. At this point, bets are on that they use the zoning laws to keep the stores out.
A gun dealer looking for a place to open a shop in D.C. will have to take on the liability of opening a store in a crime-ridden area where the likelihood exists that he will be robbed and undergo an extremely tough background check. Not to mention that 76% of DC residents supported the gun ban. On the other hand, he tries to open in a more affluent part of the city where you’re going to get fought tooth and nail on zoning ordinances which has happened in Chevy Chase, MD when a fancy outdoors outfitter tried opening a "gun shop" that sold expensive shotguns. Either option, the gun dealer will have to deal with local opposition to opening a store. So, even if there is an "Individual right", the gun dealer with have to deal with local opposition to outside interference in DC's politics.
