What Gun Laws Are Compatible With The Second Amendment?

Last week, a long term gun writer and gun rights activist, Dick Metcalf, walked into a buzz saw of criticism when he wrote a column in Guns and Ammo magazine in which he discussed what limitations government may place upon the possession, carrying and use of firearms without violating the 2nd Amendment.  In the wake of this he was fired from the magazine and the editor resigned.  To his credit, he refused to be interviewed by media outlets that were likely to twist his words to support gun restrictive gun laws, limiting his replies to a column in Outdoor Wire and an appearance on Tom Gresham's "Gun Talk" radio program.

As anyone who knows me, or has read what I wrote, knows I am a strong gun rights supporter.  So what is my reaction to Metcalf's article?  Well, in short, I largely agree with his conclusions, while almost totally disagreeing with how he reaches those conclusions.  A full explanation of my position follows.....

1) The 2nd Amendment provides an extremely high level of protection for gun rights

In recent years, gun rights supporters have won to decisive victories in the Supreme Court (also known as SCOTUS) establishing that the 2nd Amendment protects a personal right to own firearms (Heller 2008) and that this right also restricts state and local government (McDonald 2010).  While not explicitly stating that the 2nd Amendment right should be accorded the highest level of protection (strict scrutiny), the decision states more than once that the 2nd Amendment right is "fundamental to our system of ordered liberty", strongly suggesting that this is indeed the case.  

Furthermore, the 7th Circuit Court of Appeals ordered the State of Illinois to set up a system of citizen concealed carry, ruling that the 2nd Amendment protects the right of citizens to carry firearms outside the home.  While other courts have ruled differently, these rulings seem to be politically motivated and/or the courts seem to be awaiting specific direction from SCOTUS.  The fact that the state of Illinois chose not to appeal the 7th Circuit's decision to SCOTUS, instead choosing to comply with it, speaks volumes about how they think SCOTUS will eventually rule on the issue of citizen carry.

Finally, there is a huge unanswered question regarding the level of protection accorded the 2nd Amendment: Does the unique phrase "shall not be infringed" confir even greater protection upon it, or does it simple reinforce its' position in the "top tier" of constitutional rights?  If the 2nd Amendment is given a newer and higher standing above other constitutional rights, many more laws are going to be struck down.

2) The Heller decision itself allows some specific restrictions on the use and possession of firearms

a) The "common use" test

Justice Scalia wrote in Heller: "Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons."

And:

"The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense."

So, in the Heller decision, SCOTUS established a "common use" test.  If the people chose to own and use a particular kind of firearm in sufficient numbers as to be considered "common", that category of firearm cannot be banned.  This is true even if that category of firearm is especially dangerous or commonly used in crimes.

So, AR and AK pattern semi-automatic rifles - so called assault rifles - pass this test, and we will likely see bans on them invalidated.  Sawed off shotguns, cane guns and - sorry full auto enthusiasts - machine guns, do not meet this test and laws controlling them are likely to be found constitutional.

b) Restrictions on who can possess firearms

Again, from the Heller decision:

"The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill......."

So, states and the federal government MAY prohibit some people from possessing firearms - provided they are accorded due process of law - such as the right to a criminal trial or the right to a mental commitment hearing.

c) Restrictions on where firearms may be carried

Continuing the above quote from Heller:

"The Court’s opinion should not be taken to cast doubt on longstanding prohibitions .......or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings....."

So, there are some very sensitive places where government MAY (not must) prohibit the carrying of firearms.

d) Licensing of firearms dealers

Again, from Heller:

"The Court’s opinion should not be taken to cast doubt on........laws imposing conditions and qualifications on the commercial sale of arms.

e) Restrictions on concealed carry

Also from Heller:

"Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues"

So, does this mean that states can prohibit concealed carry?  It would seem so - but this does not mean that government can prohibit ALL CARRYING OF FIREARMS.  So, in practical terms, as we saw in Illinois, they must allow a legal form of carry and, in most areas, concealed carry just makes more sense.  So in practical terms, they really cannot prohibit concealed carry, because they then must allow open carry and most states do not want to deal with that.

We will address additional constitutionally possible restrictions on concealed carry later. 

3) Justice Scalia - the author of both the Heller and McDonald decisions - has stated that there are further limits consistent with the 2nd Amendment.  

Appearing on Fox News Sunday, he stated that:

"We'll see. I mean, obviously, the amendment does not apply to arms that cannot be hand-carried. It's to keep and bear. So, it doesn't apply to cannons. But I suppose there are handheld rocket launchers that can bring down airplanes that will have to be -- it will have to be decided."

So, the good Justice - who is a strong 2nd Amendment supporter - makes it clear that there is, in his opinion, another test to determine if a weapon is protected: Can it be carried by one person?

So, at least in his opinion, any weapon that cannot be carried by an individual is not protected by the 2nd Amendment.

4) Other constitutional rights on equal footing with the 2nd Amendment can be restricted under very narrow circumstances.

Let me share an example or two:

The 4th Amendment prohibits warrant-less searches - but SCOTUS has held that in "exigent circumstances", police may conduct them.  So. if probable cause exists to search a home for a kidnapped child such a search may be conducted without a warrant.  If police enter the home and do not find the child, but see drugs in plain view, those drugs can be used as evidence in court, and to obtain a warrant for further searching in the home.  However, if, in the course of searching the home, the police start rifling through desk drawers and find drugs, that search is illegal - because it exceeds the purpose of the exemption - and nothing found is admissible in court.

Another example is the regulation of parades.  Even though the content of parades is protected by the 1st Amendment, and cannot be controlled, government can require a permit for them.  What they cannot do is only allow parades that support the government or set fees so high as to discourage this form of expression.

Even though abortion is now a constitutional right, government can still require that they be performed by licensed medical professionals.

These are but a few examples of how some constitutional rights are restricted in very limited ways.

5) The full scope of 2nd Amendment protections, and what limited restrictions are constitutional, has yet to be determined. 

The gun rights community has won some very important victories - greatest of which are the Heller and McDonald decisions.  Never the less, there are many unanswered questions.

In many, many cases, the answer is obvious.  Waiting periods, arbitrary restrictions on certain firearms (such as California's "approved list" of handguns), and many other restrictions designed solely to discourage people from owning firearms are clearly illegal.

On the other hand, some laws may be constitutional - such as the requirement that gun buyers pass a brief safety test, given at the gun store, prior to buying a gun.  Or instant background checks at gun dealers.  Or the requirement for training in order to obtain a CCW permit.

Only as these issues are brought to the court and litigated will we know for sure what the answers to these questions are.

6) Accepting the reality that the 2nd Amendment right is not unlimited does not make one a traitor to the gun rights cause, nor does it open the door to unlimited restrictions.

This perhaps is the greatest criticism of Dick Metcalf and in my opinion it is unfair.  Yes, the article's title is terrible - but he didn't write that.  Yes, his idea that the founders envisioned gun laws because they included the phrase "well regulated" is just plain wrong - but concluding that he is opening the door to unlimited regulation just isn't true.  To understand why, we have to ask this question: What has to be true for a law regulating a constitutional right, protected by strict scrutiny, to be found constitutional?

As I understand it - and I would welcome comments from lawyers - in order for any regulation of such rights to be permitted, two things must both be true:

1) The regulation must serve a compelling purpose

AND

2) The method used to meet this purpose must be the least intrusive possible.

Before you read any further, please note that I AM NOT ARGUING THAT ALL OF THESE LAWS ARE CONSTITUTIONAL.  I am arguing that if they are, this does not mean greater regulation therefore is constitutional.  I am also not arguing that gun control advocates are not out to get rid of our right to keep and bear arms, and indeed all privately held guns.  I actually believe that many, though not all, want to do just that.  What I am saying is that just because some gun laws are constitutional, that does not mean that we lack strong constitutional protections against that ever happening.

So, with this in mind, let's address some of the objections brought against Disk Metcalf and against some gun laws that MAY be unconstitutional and apply this two fold test.

1) If you have to "ask permission" by obtaining a permit, than it is not a right, it's a privilege.

In several states - at least for now - this is true.  We call these kind of laws "may issue", and I live under one of these laws in California.  However, the legal handwriting is on the wall for these kind of laws, that require proof of "good cause" for the issuance of a permit.  Indeed, the Sheriff of Sacramento County decided to settle a lawsuit by granting permits for simple self defense.  Other counties, including mine, have become "virtual shall issue", meaning that in practice anyone passing the background check, training and the interview will be granted a permit by the sheriff.   Why?  Simple, they see what is coming.  They know that "may issue" is doomed legally.  Assuming the open carry method of bearing arms is closed, "may issue" absolutely violates the 2nd Amendment.

That said, let's consider the much more common CCW law: "Shall issue".  Think about that for a minute.  Shall issue laws affirm the right of citizens to bear arms.  The presumption is that you have a right to the permit.  I would argue that passing a background check and completing minimum training is not "asking permission" - it is complying with minimal requirements to exercise a constitutionally protected right.

Is that an infringement?  Maybe, maybe not - but either way, it's not "asking permission" because the presumption is that you are entitled to the permit.

2) If there are any requirements for concealed (or open) carry, the 2nd Amendment is infringed.

I would argue that legally, the presumption is that it is indeed an infringement, but that unless the 2nd Amendment is accorded even more protection than other constitutional rights accorded strict scrutiny, this presumption is rebuttable.   In other words, if government can prove that the law passes the two fold test of compelling purpose and least intrusive method, than requiring a permit is constitutional and not an infringement.

So, first of all, is there a compelling purpose for requiring a permit and each requirement to obtain said permit?

Well, those who believe that there is would point to the compelling need to screen those authorized to carry firearms to prove they are not felons nor insane AND to insure that those carrying firearms do so safely and know the laws regarding the use of deadly force.  Chances are, agree or disagree, SCOTUS will probably find that these reasons are indeed compelling - and that therefore government MAY (not must) regulate the carrying of firearms to insure these compelling requirements are met.

3) If there are any requirements for obtaining a permit there is nothing stopping government from making them so burdensome that the average person could never meet them.

Those who make this argument ignore the second requirement - that any regulation of a right protected by strict scrutiny must be the least intrusive possible that will still meet the compelling need.  What does this mean?  What protection does this offer us?

Well, it certainly means that any requirement designed to discourage people from obtaining permits is unconstitutional.  So there is no way they can require 50-100 hours of training (or more), or refuse to recognize equivalent training from the police or military. 

So, what is the maximum they could require?  Well the last time I looked, the minimum standard for police firearms training (POST) was 40 hours - so there is no way that could be exceeded.  Furthermore, citizens do not need to know everything police are taught in order to carry a firearm because they have no duty to intervene.  Additionally, the state of California only requires 14 hours of training for armed guards. 

The reality is that, if a concealed carry law were to be challenged, the state would have to justify every aspect of the required training.  How much could they justify, how many hours could they rack up?  In my opinion, Metcalf is probably correct that 16 hours could be justified, but much more would be very hard.  This is probably one of the reasons Illinois did not require more hours. 

So, now that you have read this - how far off the mark was Dick Metcalf on the issue of concealed carry?

What about other gun laws?  What other laws may be permissible under the 2nd Amendment?

OK, let's consider some laws that are popular with the other side:

Background checks: Well, Heller made it clear that felons and the mentally ill should not be allowed to possess firearms.  It can be argued that this is a compelling reason for background checks.  Moving to step two: How intrusive does this background check have to be?  Answer: Not very.  With the NICS system you can walk into a gun dealer and buy a gun and be out in an hour with the background check complete.  What about waiting periods and more intrusive background checks?  They fail the intrusive test for sure.  Waiting periods - especially for those who already own guns - also fail the "compelling purpose" test.

Registration of firearms: The answer here is a definite maybe.  Remember, we are fond of pointing out that the people are the militia - some organized, others, the bulk of the population, unorganized.  Many of us have pointed out that should we ever face a situation such as the UK faced after Dunkirk, our militia would not face the same grave lack of weapons the Home Guard faced, where they had to hunt down armed German pilots with nothing more than sticks and pitch forks.

In light of this, the only way I can see registration meeting a compelling purpose, would be registration as part of a pre-organization of the "unorganized militia".  Could this be required in time of peace?  Probably not.  In time of war?  Almost certainly yes.

As for other reasons given for registration, there are other, less intrusive ways to accomplish these purposes, even if there is a compelling purpose.  For instance, crime guns are tracked quite successfully now, without registration.

Edit: It should be noted that in October 2011, ruling in the follow on case to Heller known as "Heller II"  the U.S. Court of Appeals upheld the concept of what it called the “basic” registration of handguns, but not a requirement for long guns, which it termed “novel,  not historic.”  And the court questioned whether any registration of rifles and shotguns is constitutional.

It is likely that the court considered the fact that long guns are infrequently used in crimes - while handguns are the most common murder weapon in the US.  My prediction, based on looking at previous ruling is that SCOTUS will likely find long gun registration unconstitutional and MAY find the fact that handguns are the number one murder weapon, sufficient cause to allow their registration.

Bans on so called "assault weapons" and "high capacity" magazines.  To begin with, as is so often the case, this is a meaningless term that gun control groups can change to mean whatever they want.  However, with few exceptions, most assault weapons bans are going to fail to pass review, if and when SCOTUS looks at them.  Here's why:

1) These firearms and magazines are "in common use" - they are the most popular guns in America.  If they are not protected by the 2nd Amendment, no firearm is.

2) In Heller, D.C. argued that handguns were so dangerous and were used in so many crimes, that there was a compelling need to ban them.  SCOTUS completely disagreed - stating that they were in "common use" and could not be banned - even though they are used in 60% of homicides.  It is inconceivable that they would rule that firearms used in less than 3% of homicides are so dangerous that there is a compelling need to ban them.

3) For decades, the gun control movement has preached the militia purpose of the 2nd Amendment.  Now, that comes back to bite them.  If one reason for the right of citizens to own firearms is that they may be called to serve in a state militia in times of extreme emergency, how can they be denied guns that are "too military"?

These are but three reasons why bans of most so called "assault weapons" as well as so called "high capacity" magazines, are likely to be struck down.

Does this mean that all guns now banned are likely to be legal? Are their any guns that can be banned?  Yes, there are: Any weapon not "in common use" can be banned.  The same probably goes for magazines.  In practical terms, this means that AR and AK platform rifles are on solid ground, but AR and AK pistols may not be - because it can be argued that this type of firearm is not "in common use",  just as sawed off shotguns are not in common use.

In regards to magazines, the same test applies: Is this type of magazine "in common use"?  Clearly, pistol magazines holding up to 20 rounds are, as are rifle magazines holding up to roughly 35 rounds.   There are magazines being sold, such as 100 round drums, that may very well fail this test, and thus might be subject to a ban - but most of the magazines gun control groups wish to ban are almost certainly protected.

Well that's it. Before you add me to your flame list, remember this: As we win more and more victories, we are eventually going to come up against the limit of the 2nd Amendment right.   The only way we are going to find that limit is by continuing to do what we are doing: Fighting in the courts.  I support such legal action 100%.

I often tell people who are in favor of sweeping gun laws and gun bans to read the Heller and McDonald decisions, to learn how wrong they are.  If you think that the 2nd Amendment protects an unlimited right to own any and every weapon, I urge you to do the same thing for the same reason.  We can argue all we want, but in the end, what those nine men and women in black robes say the constitution says, is what will be enforced.