Q&A: D.C. Gun Ban Overturned; What's Next? The Supreme Court's ruling that Washington, D.C., can't ban its residents from owning handguns has advocates on both sides of the gun-control issue scrambling to reshape their strategies. Stanford law professor Robert Weisberg, a former Supreme Court clerk, offers his perspective on the decision.
NPR logo Q&A: D.C. Gun Ban Overturned; What's Next?

Q&A: D.C. Gun Ban Overturned; What's Next?

The Supreme Court's ruling that the District of Columbia can't ban its residents from owning handguns has advocates on both sides of the gun-control issue scrambling to reshape their strategies. The 5-4 decision is the court's first ruling on gun ownership since 1939.

For insight on the case, we spoke to professor Robert Weisberg of Stanford Law School in California. A former Supreme Court clerk, Weisberg now heads the Stanford Criminal Justice Center.

What is your initial reaction to the court's decision to declare the District of Columbia's handgun ban unconstitutional?

I think the Supreme Court just created new job opportunities for constitutional law attorneys. But this ruling may be much narrower than it appears. The D.C. gun law was the most draconian in the country.

It was this extreme statute, saying that otherwise qualified people — an average innocent citizen who could pass a background check — under the D.C. ordinance, she would violate the law by keeping a handgun in her home.

That's a very draconian ban.

It was extreme enough that it was as if it were written by the NRA, to force the court to come out and say, "Oh my God, that's just going too far."

And yet, this case wasn't filed by an average citizen, but by a security guard, Dick Anthony Heller, who lives in a high-crime area.

He is an extremely sympathetic plaintiff — seemingly as qualified a gun owner as you can have. He was somebody who just barely fell outside the line of a police officer.

It was the perfect case to force the Supreme Court to say that maybe a legislature can go too far in restricting gun ownership. It was bound to happen.

But it's very hard to say whether this opinion would invalidate other less extreme laws.

The court's majority was explicit in limiting the reach of its opinion. It said it in no way limits legislatures from prohibiting gun possession by felons or severely mentally ill individuals, for example.

And a license requirement that is reasonable may be OK. The court doesn't say exactly what "reasonable" is. The ruling settled the big symbolic issue, but didn't settle most of the practical issues.

The court's ruling declares that Washington, D.C.'s handgun ban is not enforceable in its current state. Does that mean anyone can now buy and own a gun there?

Well, they still have to get licenses. The license requirement wasn't struck down. In theory, people can now go and ask for licenses. And they can't be turned down, unless the rejection is based on some reasonable criteria.

So, the city is likely to start implementing some criteria right away.

But it would not be legal for someone to just go out and buy and possess a handgun today, without at least going through the motions of getting a license, to give the district a chance to implement some criteria under the licensing law.

It's this funny thing, because right now, the licensing may be a formality, because there are no criteria. And the case seems to say that today, Mr. Heller should be able to walk into the licensing office and get a license.

So, in a certain sense, retaining the licensing is an empty formality. But presumably it won't be an empty formality, because the district will figure out some criteria it wants to apply.

The court had two dissenting opinions on the case, one by Justice Stephen Breyer and one by Justice John Paul Stevens. Do they give any indication of what might happen in future gun-control cases?

They're sort of complementary. The Stevens dissent is the general one. On historical grounds, it basically disagrees with the majority on whether the right to bear arms is collective or individual. Stevens' opinion says that history shows that the only real meaning of the right to bear arms was a kind of states' rights power to organize militias, not an individual right.

The Breyer dissent takes the majority to task on the level of scrutiny. Breyer is telling the majority, "You can't just declare a general individual right to bear arms, and then say that this statute falls."

Since the majority doesn't say that the right to bear arms is absolute, Breyer is saying to them, "You have to tell us by what criteria we determine when a gun ban is reasonable or not. You don't tell us that, and you never really examine this particular statute in any detail to see if it's reasonable or not."

So, Breyer is prompting a wider review of U.S. gun law?

Right, this is sort of a suggestion for future cases. He says the proper way to look at this is by an "interest-balancing" test.

If a jurisdiction can offer the courts an important and convincing enough policy reason for a certain gun restriction --particularly if, as in D.C., there may be an unusual exigency about violent crime, the courts might be obliged to uphold the law, in light of those special, local interests.

But he complains that the court was in such a rush to make its general declaration that it didn't take the district's specific arguments about the need for this particular gun ban seriously enough.

So, even though it's a dissent, it may be a clear signal to future courts about how to interpret the majority.

Would that also give other jurisdictions a signpost, a hint of how to write their own gun bans?

It might. But at the same time, the Scalia majority says it doesn't really like Breyer's standard, this "interest-balancing" thing. It thinks that that's too vague.

But I don't think you can really tell from the majority opinion what standard will be applied down the road, to more typical gun laws. I think the most important thing to note is the extreme nature of the D.C. gun statute.

And courts are going to have to not only decide how different other statutes are from this one; they're also going to have to evolve some criteria for evaluating those differences. And we just don't know yet.

The District of Columbia is not the only place trying to restrict handguns. What do you see happening in other cities and states?

Clearly, various plaintiffs and groups are now going to challenge lots of gun laws around the country. At the same time, lots of jurisdictions are going to defend their gun laws by laying out arguments about the special need that would support a particular ban in a particular place.

Washington's law was an absolute ban on handguns. I'm unaware of anything that extreme. It's the combination of, "you can't own a handgun at all," and for other, larger, guns, "you have to have them unloaded and trigger-locked, except in places of business."

There's a little uncertainty, though. The court left open the possibility that the trigger lock and unloading rule might be acceptable as a general matter, if exceptions were made where there was an argument for self-defense — for instance, someone who has been threatened, or who lives in a neighborhood where there have been violent break-ins.

The law could possibly be interpreted as having an exception to the trigger lock and unloading rule for those circumstances. The statute wasn't interpreted that way; it was treated as if there was no exception possible. So we don't know if a law with those restrictions that also allowed for certain exceptions for self-defense might be permissible.

What about the states that already have laws in place?

I think gun laws that are only slightly less restrictive than D.C.'s may be in trouble.

Technically speaking, all this can say is that this particular law is unconstitutional. And any law lacking any of the important draconian features of the D.C. law could conceivably be legitimate. But we just don't know yet.

-- From a conversation that was condensed and edited.