Monday’s decision in McDonald vs. City of Chicago is a major victory for civil rights. Yes, it was 5-4 and the ruling was weaker than it could have been, but the basic holding that the Second Amendment is incorporated against states and all lower levels of government can be a powerful tool for positive change if we wield it correctly. The legal climate for full restoration of firearms rights in the U.S. is now better than it’s been since the passage of the Gun Control Act of 1968.
Much remains to be done, however. The Heller ruling in 2008, while affirming that firearms ownership is a fundamental individual right, allowed “reasonable regulation” and failed to specify a standard of scrutiny for what is “reasonable”; the McDonald decision does not specify this either. The constitutionally correct position, of course, is that laws infringing on Second Amendment liberties should have to meet the same strictest-scrutiny standard applied where the First Amendment is concerned — but the City of Chicago has already made plain its intent to nullify the Heller and MacDonald rulings by equating “reasonable” with “prohibitive”.
The next major round of litigation will almost certainly be over the scrutiny standard. The tactical question for gun-rights advocates, though, is which kind of state and local regulations to attack, and in what order. Of course outright gun bans like Chicago’s need to be first on the target list; but after that, what?
It seems to me that the next logical target is concealed-carry bans and permit requirements for handguns. This is an issue that affects more Americans than restrictions on long arms or registration requirements, so popular pressure should be easiest to muster here. Two states (Wisconsin and Illinois) forbid concealed carry altogether; three others (Alaska, Vermont, and Arizona) do not have any permit requirement. Comparing crime and violence rates per capita it’s pretty clear which arrangement wins.
If I were a pro-Second-Amendment lawyer, I would argue thusly: (1) the applicable standard is “strict scrutiny”, e.g. the law must serve a compelling purpose which cannot be served by less stringent regulation, and (2) the example of Alaska and Vermont shows that these regulations do not serve a compelling purpose at all.
It will be interesting to see if any civil-rights group is brave enough to try this.