A number of emails arrived yesterday asking what I thought the McDonald decision meant for New York City.  Let’s get one thing straight, at the pace in which the Supreme Court is deciding the many aspects of Second Amendment jurisprudence, first Heller, creating an individual federal right that may or may not be fundamental and may, notwithstanding, be saddled with a bunch of incongruous an inexplicably permissible conditions, and now McDonald, the likelihood of anything coming of it in my lifetime is slim.

McDonald did one thing only, holding that the right enunciated in Heller applies to the states.  As with the mystery paragraph of Heller, the Court reiterated that the decision doesn’t preclude regulation and limitation.  This leaves open the next hundred years of piecemeal litigation over each and every inch of imaginative legislation to see where the line is drawn.  We’re so far away right now that we can’t even see the line, no less know what the line precludes.

Heck, as Eugene Volokh points out, the Court hasn’t even cleared up whether the right is truly fundamental, and whether limitations are subject to strict or intermediate scrutiny.  While these legal issues aren’t particularly interesting to non-lawyers, they play a huge role in framing laws to restrict the applicability of Heller and its progeny.  More decisions needed to flesh out the right mean more years before anybody really understands what can and can’t be done.

If the City and State of New York were miraculously inclined to embrace the concept, however, the best one could hope for, given what the Supremes have offered up to now, is an onerous application/registration process for ownership of a non-automatic handgun or rifle within the home (only) for the purpose of self-defense by sane, competent and trained people over the age of 21, without any prior felony, and possibly serious misdemeanor, conviction, restraining order, and maybe open investigation. 

The process would be prolonged and expensive, and would require proof of insurance for the weapon, which would again be expensive.  While applicants would not be required to show special need to possess a weapon for self -defense, they might be required to provide verifiable proof of everything they’ve ever done in their life from birth to the day of application.  In triplicate.

In other words, don’t expect any rush on guns any time soon.  And that’s assuming the powers to accede to the 2nd amendment.  They won’t.  They will fight it every inch of the way.  Given the Supreme Court’s apparent inclination to parse out the details as if the cost is paid from Scalia’s pocket personally, it could take forever before all the questions are answered.

In the meantime, the New York Times editorial du jour argues that the Supreme Court doesn’t get it.  Guns kill.

About 10,000 Americans died by handgun violence, according to federal statistics, in the four months that the Supreme Court debated which clause of the Constitution it would use to subvert Chicago’s entirely sensible ban on handgun ownership. The arguments that led to Monday’s decision undermining Chicago’s law were infuriatingly abstract, but the results will be all too real and bloody.

The Court gets it.  We all get it.  People are being gunned down in Chicago as I type, which not only proves that guns kill, but that laws the all but prohibit the possession of guns by law-abiding citizens don’t stop guns from killing.  This doesn’t mean that we’ll be any better off with guns in the hands of law-abiding citizens, as RKBA advocates argue, but the Times doesn’t get that the argument is no longer relevant. 

Arguing that the Heller decision fails to acknowledge the cost of the 2nd Amendment is like arguing that the creation of the exclusionary rule ignores that some criminals will get away with crimes.  Conferring rights has consequences, but where the Constitution provides for a right, despite the different readings that are fair argument, it reflects a choice between the effect of denial of the right and the effect of the right itself.  Every choice has consequences, and these are the consequences we suffer to enjoy the rights conferred.  That’s the nature of rights.  Somebody enjoys while somebody suffers.

And if anybody doubts that McDonald is merely another baby step in a very, very long journey, consider that it took 214 pages to conclude that the right is incorporated.  Just wait until the Supremes have to struggle with some of the tougher questions, like whether children under the age of 6 months living in a home for which an application to possess a firearm has been made will have to pass a physical examination to demonstrate competency in firearms handling.  Yes, the possibilities are endless.