By David G. Savage, Los Angeles Times Staff Writer|June 28, 2008
WASHINGTON — The Supreme Court's historic ruling this week that clarified Americans' right to own a gun for self-defense left a crucial question unanswered, one that will be resolved only after many years and a torrent of litigation, legal experts said Friday.
Is gun ownership a "fundamental right" under the Constitution, or something less? Put simply, is a gun akin to an automobile, a legal but dangerous product that can be strictly regulated by the government? Or is a gun more like a book, both legal and largely off-limits to government regulation?
"There's a lot that needs to be sorted out. The big question is: Is this like the 1st Amendment and the freedom of speech?" said John Eastman, dean of the Chapman University School of Law in Orange. He once was a clerk on the high court.
2nd Amendment scope
The nature and scope of the 2nd Amendment right will determine whether many gun restrictions are struck down, or only the most extreme measures, like the District of Columbia's ban on private handguns even in homes.
In the past, the high court has adopted a two-tiered approach when weighing claims. If a law or government regulation conflicts with an individual's "fundamental right" under the Constitution, the balance weighs in favor of the individual. Since a book is protected by the fundamental right to free speech in the 1st Amendment, no one would think authors in this country need to be licensed and their writings officially inspected by the government.
But if no fundamental right is involved, the court has said, government may insist on strict regulation to protect the public. No one would think it is unconstitutional for the state to require motorists to have a license and insurance, to have their cars inspected, and to obey speed limits.
Gun-rights advocates have long insisted that the 2nd Amendment protects a law-abiding citizen's fundamental right to have firearms for self-defense, and they won a historic but not total victory this week.
Justice Antonin Scalia said the court would leave it to another day to decide the nature of the right to a gun.
UCLA Law professor Adam Winkler said the court "left the most important question unanswered: What exactly does the 2nd Amendment prohibit? The majority refused to adopt a standard of review for judging future disputes. This is unfortunate, because lower federal courts and state courts should now see a tidal wave of litigation challenging gun-control laws."
