Justice for John Yoo and Jay Bybee

Moments ago, the Supreme Court announced that, Yes Virginia, the Second Amendment does in fact apply to the states, and thereby struck down Chicago’s complete ban on handgun possession. But this decision (and the Court’s prior decision in Heller) raises still other questions which will likely have a substantial impact on what that Second Amendment right functionally means. For example, what constitutes a reasonable regulation on firearms under the Second Amendment?

Chicago Mayor Richard Daley is wasting no time. Before the Supreme Court even issued its opinion, he said that he was poised to immediately pass legislation to regulate guns if Chicago’s ban is struck down. If anyone doubts how reasonable his regulations will be, it is apparent that he is seeking to limit guns as severely as possible, based upon his judgment that “guns don’t solve problems in homes [or] on streets. They kill people.”

The McDonald decision will likely bring a flood of litigation, as courts and the legislatures attempt to determine what is permitted under the Second Amendment—and as inevitable challenges are raised to whatever it is that Daley devises. Elena Kagan, who if confirmed could sit on the Court for decades to come, would thus have the ability to place a significant mark on what the Second Amendment substantively means.

As has been mentioned previously on this page, there are several reasons from Kagan’s relatively scant record to question whether she believes that the Second Amendment should have any substance—from her memo to Justice Marshall, in which she recommended denying access to the Court to a petitioner who sought to challenge DC’s gun ban because she was “unsympathetic,” to her lumping the NRA with the KKK as “bad guy org[anizations], to her work in the Clinton administration to include hunting rifles in a ban on the importation of certain assault rifles, to her failure to file a brief in the McDonald case. Given her prejudicial actions, she should face a substantial burden in Senate questioning to show that she is willing to give substantive meaning to the Second Amendment. To do otherwise risks that she will join those Justices who would make Heller and McDonald constitutional eunuchs—cases which recognize that the Second Amendment applies to individuals—but which lack offspring cases providing substance to that right.

Cross-posted at Bench Memos.