Gun law challenges likely after court ruling
| June 30, 2010 9:00 PM
WASHINGTON - State or local gun laws that prohibit people from carrying firearms outside the home and onerous registration requirements are the most likely to be struck down by judges following the Supreme Court's latest decision supporting the right to keep and bear arms.
An explosion of cases will keep courts busy for years defining gun control's new limits now that the high court has ruled that wherever they live, Americans have a right to possess guns, at least for self-defense in the home.
Justice Samuel Alito, author of the majority opinion Monday, dismissed "doomsday proclamations" that all gun laws would be struck down. Alito essentially repeated the formulation used by Justice Antonin Scalia two years ago that the court was not calling into question "long-standing prohibitions on the possession of firearms by felons or the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings."
But the justices left a lot of ground for other courts to cover in determining the constitutional limits on gun laws. Legal challenges already are pending against several state and big-city gun laws.
Among other laws already facing lawsuits or expected to be challenged:
• Age limits that bar people younger than 21 from buying or owning guns.
• Lockbox and trigger-lock requirements to keep guns away from children.
• One-gun-a-month purchase limits in California, Maryland, New Jersey and Virginia.
• Georgia's prohibition on carrying guns into churches.
• Bans on guns in bars.
• California's outlawing of certain handguns.
• Assault weapons and ammunition bans.
• Federal and state prohibitions aimed at keeping domestic violence offenders from having guns.
Local officials around the country professed confidence that their regulations would hold up under legal scrutiny, but many scholars were not so sure.
"I think a lot of these will fall," said Temple University law professor David Kairys, a gun control proponent. "Can you limit people's ability to carry concealed weapons, or open weapons? That's noticeably absent from the majority's list of what you can do."
Eugene Volokh, a UCLA law school professor who has written extensively on these constitutional issues, predicted challenges to the ban on assault rifles will fail because judges will conclude that people still will be "free to have lots and lots of guns."
But he said attempts to eliminate carrying restrictions probably will fare better because gun rights advocates can argue that their right to self defense means that they should be able to carry their weapons almost wherever they want, with exceptions for government buildings and schools.
Drawn-out permitting processes in New York and elsewhere also are ripe for a challenge, Volokh said. "I think a court will have no problem upholding a one-, two-, five-day waiting period," he said. "But if you're talking about a five-month wait, then a court may find it's a substantial burden."
New York restricts who can possess and carry guns, allowing handgun permits only to applicants of "good moral character." New Yorkers who want to carry their weapons must show "good cause" in addition to character, under a 99-year-old law.
James Jacobs, a New York University law professor, said the high court presumes people have a right to a gun unless the government can show there's a good reason to prevent it.
The ruling, Jacobs said, "casts a long shadow over New York City's gun regulations."
San Francisco officials are defending their law that bans handguns kept at home unless they are stored in a locked container or have their trigger locks engaged. Washington, D.C., where the court struck down a handgun ban in 2008, is facing a new federal lawsuits over its registration law and refusal to allow people to carry weapons outside the home.
Douglas Berman, an Ohio State University law professor, said courts might decide that in places with tough registration laws, restrictions on where guns can be carried may be less important - and vice versa.
But Berman said he expects some of the hardest questions will deal with people making a case to be armed for self-defense. "Can a state say no guns on college campuses? That's someone's home," Berman said.
Many federal criminal defendants already have sought to challenge gun charges pending against them based on the Supreme Court's decision in 2008, and "there are likely a significant number of state criminal defendants" who will do the same, Berman said.
One category of challenges could come from people convicted of misdemeanor domestic violence crimes because the high court offered assurances only about laws that bar felons from having guns.
Family Violence Prevention Fund lawyer Jennifer White said she expects stepped-up challenges to laws that seek to keep guns out of the hands of people convicted of domestic violence. "It would be a horrible danger to battered women and children if that aspect of the law is eliminated," White said.