What Will The Constitution Allow? New Gun Laws And Current Constitutional Law

Which Of The Proposed New Laws Will Survive Supreme Court Review?

Let me preface this article with a disclaimer:  I am not a lawyer.  That said, most lawyers practicing today know very little about current constitutional law and firearms.  This lack of knowledge stems from two causes: First, everything they learned in law school has been invalidated by recent rulings in 2008 and 2010.  Second, most lawyers specialize after passing the Bar – and very few specialize in firearms law.  As a result, I can say that I know much, much more about this subject than the average lawyer – because I have followed this issue very closely for many years.

In contrast to what was falsely taught in law schools until very recently, the Supreme Court (SCOTUS) ruled in 2008 that the 2^nd Amendment protects an individual, personal right to own a firearm.  In this case (DC v. Heller) the court ruled that the District of Columbia could not ban the possession of handguns.  There are several important aspects to this ruling:

First, SCOTUS held that, like 1^st Amendment rights, the 2^nd Amendment right is not absolute and unlimited.  The majority held that: “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose……. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or 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.”

Second, SCOTUS gave some guidance as to what kind of weapons are protected, specifically those in common use by citizens.  “We also recognize another important limitation on the right to keep and carry arms.  Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.”  “But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.” The common use provision is rooted in the Miller decision (1939).  Thus machine guns and sawed off shotguns may be banned, but any firearm in common possession by the public for any lawful use cannot be banned.  It should also be noted that in Miller SCOTUS held that in order to be protected, the firearm is required to have military value.

Third, SCOTUS held, addressing the question at hand, than a ban on the possession of handguns was and is, unconstitutional.  This is extremely significant because the District of Columbia argued that the ban should be upheld because handguns are commonly used in crime and the self-defense needs of citizens could be met with rifles and shotguns.  SCOTUS disagreed: “Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”  The rejection of this argument is extremely significant.   Handguns are used in 60% of homicides.  If they cannot be banned because they are a popular and common firearm, than no other common and popular firearm can be banned.

Fourth, in Heller SCOTUS did not rule on the level of protection (or in legal terms, scrutiny) that the 2^nd Amendment right should be accorded.   They stated that there was no need to address the issue because a total handgun ban would be unconstitutional even if the 2^nd Amendment were accorded the lowest level of scrutiny.

Almost immediately after winning the Heller case, gun rights advocates filed suit against the City of Chicago, which had an identical handgun ban.  They did so in order to establish if the 2^nd Amendment was “incorporated” under the 14^th Amendment.  Incorporated rights are restrict all levels of government, not just the Federal Government.  In the McDonald decision (2010) SCOTUS held that:

First, the 2^nd Amendment is incorporated and therefore applies equally to all levels of government.

Second, and perhaps of equal importance, SCOTUS held that the 2^nd Amendment is “fundamental to our system of ordered liberty”, signaling that it is to be accorded a very high level of scrutiny, perhaps as high a level as the 1^st Amendment.

Right to Carry?

Additionally, in December 2012, the 7th U.S. Circuit Court of Appeals found that there is a constitutional rights to carry (bear) a firearm outside the home and ordered the state of Illinois to establish a legal method of concealed carry within 90 days.  It is unknown if Illinois will appeal to SCOTUS, or to the entire 7^th Circuit.  Illinois is the last state with no legal method of citizens to carry a firearm. 

In another case, Woollard v. Sheridan, the issue is simple: Can the state require an applicant for a concealed carry permit to provide that they have a “need” or “good cause” before issuing it?  The Federal District Court held that the right to carry is included in the 2^nd Amendment and that the state cannot require a person to show “good cause” to exercise a right.  The 4th Circuit Court of Appeals heard Maryland’s appeal of the case on October 24, 2012, and has not issued its’ decision as of February 4, 2013 .

It is probable that one or both of these cases will be appealed to SCOTUS.  Specifically, the high court has quietly let it be known that it is looking for a “clean” concealed carry case.  So they can decide the issue.

How This Applies To Currently Proposed Laws

Proposed and Current Assault Weapons Bans: Since “Assault Rifles” are some of the most popular firearms in the US (the AR15 pattern rifle out sells all other firearms), there is little question that the bans in place in some states and proposed at the federal level are, in fact, unconstitutional.  It is inconceivable that, after ruling that the most common murder weapon (60% of murders) in the US cannot be banned because it is protected by the 2^nd Amendment, rifles responsible for less than 3% can somehow be banned.  Gun control advocates are grabbing at straws on this one.

In contrast, so called “Assault Pistols” – which are merely “cut down” rifles - are not in common use and a well written ban would likely survive review.

Magazine capacity limits: This situation is somewhat less clear.  It is probable that the court would apply the same “common use” test.  If they indeed take this approach, then they might allow a ban on some “high capacity magazines” not in common use – such as 30 round pistol magazines and 100 round rifle magazines – while invalidating bans on magazines in common use, such as 30 round rifle magazines and pistol magazines holding 15-20 rounds held within the grip of the pistol.  Given the example of New York state, which just lowered its’ magazine capacity limit to 7 rounds from 10 rounds, gun rights advocates can make a strong argument that arbitrary limits can and will be used to effectively cripple the firearm and therefore infringe upon the right to own a fully functional protected firearm.

“Universal” Background Checks: It is here that the gun control advocates have their best chance, both politically and legally.  It is not likely that SCOTUS would consider a background check to be an infringement, since the court has already held that felons and the mentally ill can be prevented from owning or possessing firearms.  This assumes that the background check would indeed be designed to accomplish this purpose and would not involve unnecessary delays or “waiting periods”.

Beyond the federal level, many state laws, such as those in California and New York that go far, far beyond what is proposed at a national level, are without question in violation of the Constitution.  The only reason they have not been struck down is that gun rights advocates have learned a lot from other civil rights cases.  They are proceeding slowly and systematically, intentionally forcing the courts to define the extent and limits of the 2^nd Amendment right.  In contrast, the gun control lobby is pushing government at every level to simply ignore the constitution and pass even more restrictive laws that directly conflict with recent SCOTUS rulings.

So, there you have it.  Given all of the news about gun control, one might ask: Why has the national media not covered this aspect of the story?