Expert: Robert P. Firriolo - 6/28/2010

Question
In light of todays ruling in favor of 2nd Amendment Rights across states, How will this affect the Lautenberg Act in regards to domestic assault misdemeanors?

Answer
McDonald is unlikely to have any immediate or definite impact. First, the Supreme Court reiterated what it said in Heller about the Second Amendment not being a bar to laws prohibiting possession by "felons and the mentally ill":

"It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not 'a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.' ... We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill,' 'laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.'”

While it is true that Lautenberg involves not felonies but domestic violence misdemeanors, the court did not say what the standard of review for laws under the Second Amendment will be. The issue was not before the Court on this appeal.

We do know that, as a fundamental right, the right to keep and bear arms may not be unduly burdened. We also know from Heller and from other cases applying fundamental rights, that the standard of review will not be rational review.

Gun laws that unduly burden the right to own a gun will be overturned, whatever “unduly burdened” turns out to be. Right now there is no way to tell if a law prohibiting possession of those convicted of domestic violence misdemeanors will survive a Second Amendment challenge. It could be that the federal courts consider those crimes similar enough to felonies that they fall within the "longstanding regulatory measures" spoken of with approval in Heller and McDonald. On the other hand, a good argument can be made that such misdemeanors cannot survive a Second Amendment challenge because they are not "longstanding" prohibitions nor are they felonies, indicating the crimes are inherently not serious enough to restrict a fundamental right.

The bottom line is that until the federal courts -- and ultimately the US Supreme Court -- tell us what standard of review will be applied to Second Amendment challenges, it is very difficult to predict how any law short of a full ban on possession inside one's home will stand against such a challenge.