Tuesday, November 12, 2013

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."


"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


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.


  1. Very well done. I wish that the people who are so zealous in their concern for the 2nd Amendment would be as judicious and reasonable as yourself. Just want to make a brief point, namely, that Scalia's mention that the government can regulate the commercial sale of guns goes well beyond the regulation of dealers, for example, the 1968 GCA not only initiated the 4473 system (although not the NICS) but also prohibited individual-to-individual interstate transfer of guns; revised to allow for long gun transfers between contiguous states (thanks in part to lobbying by Dick Metcalf) but retained for all handgun transfers. I wrote a blog on this for Huffington Post last week.
    Mike the Gun Guy

  2. Nicely done, thank you.

    I have two competing points for your consideration, both from the Heller decision...

    First, the possible limitations. Specifically "...not be taken to cast doubt on *longstanding* prohibitions.." Emphasis mine.

    Combined with the second, the "common use" test.

    The first, in my opinion, acknowledges that there are already limitations in place, have been for a while, and this (the Heller) court decision isn't addressing them. Basically the Court said we are hearing this, not that.

    But that idea makes it's own loophole with the *longstanding* because it still allows something to be banned because the longstanding prohibition has removed something from common use.

    Machine guns aren't in common use and therefore fail the test. But machine guns aren't in common use because they were banned a long time ago.

    The very limitation of the right has established itself by virtue of being done a long time ago.

    I know I am focusing very narrowly on the subject.... maybe too much so. I just want to remove as many options from the gun control crowd as possible. I want them to argue the merits of gun control and not use circular legal traps in their quest to disarm us.

    1. I understand the reasoning behind your argument: You can't outlaw a class of firearms and than say that it can be banned because it is not in common use. You MAY have a point in regards to SOME prohibited firearms and accessories, but not in regards to others.

      For instance, suppressors are "in common use" where legal (Europe). Could this be used to argue that were they made legal here they would meet the common use test if made legal? Maybe. Another question would have to be: When they were legal, were they in common use?

      Consider machine guns. They clearly were not in common use before NFA 1934. Auto Ordinance could not even sell it's initial batch of Thompsons made in 1918, until the Brits started buying them in the early days of WW2. It would likely be an uphill battle to argue that they would be "in common use" jf legal today. In fact, the cost of ammo alone would argue against this.

      I'm not saying that suppressors and/or full auto guns must be banned, should be banned, or that they definitely not protected by the 2nd Amendment. I am saying that claiming 2nd Amendment protection for these firearms and accessories is going to be difficult, given the current state of 2nd Amendment law.

  3. One of the things that was offered in exchange for background checks was the repeal of the ban on purchasing out of state.........

    If the gun control groups were not committed to ever increasing restrictions, in order to satisfy the extremists on there side, they could offer the gun rights side something they really want - like maybe federal preemption of most gun laws - in exchange for something they really want, like universal background checks. This would almost certainly be an offer the NRA could not refuse - since so many of it's members live in states with oppressive, and largely useless, gun laws.

    They fact that this has never happened speak volumes about the ultimate goals of many gun control groups....

  4. At first blush some points are made, but I feel that you are missing the point with this dust up and that is all that you are citing are argument based on laws that should have never been made. 1934 mostly regulates automatics and suppressors, before that machine guns were could be purchased by the common man. But there was compromise and a law was created with the promised to protect us but gangsters continued to kill each other and bystanders, and judges use the precedence of the 1934 law to make the reasonable argument. The gun control compromise of 1964 created the NFA and the licensing of firearm dealers. Again a law that was suppose to protect the masses but has down only to restrict the law abiding. 1984, 1994. One more time put more restriction with no measurable benefit. It was recently was revealed just how little there was follow up on background checks. Finally and thankfully gun owners, either woke up, or new generation finally struck out on their own to stop the bleeding out of our 2nd amendment. So do you see how the gun community is not willing to put up with the likes of Metcalf when they write stuff like this? All these opinions you have cited in the defense of Metcalf have come from precedence of gun control laws of the past which came about due to the willingness of the older generation to compromise. Sorry man we are done compromising.

    1. Sorry for thr grammar I am writing from an Android that has a 2x4 screen. Should have waited to get home to a full key board.

    2. Eh I misquoted the NFA was actually 1934.

  5. I'd like your thoughts on a particular "common use" question that's been eating at the back of my mind.

    When it comes to fully-automatic rifles - "machine guns" - the Hughes Amendment to the FOPA of '86 banned all importation and manufacture, artificially creating an extremely limited supply, therefore guaranteeing such firearms would never be "in common use." How does that square with the Heller decision?

    Asked another way, suppose a manufacturer designs an effective firearm with a mechanical action the like of which is unseen on the current market. Being a brand new product/design, by definition it cannot be "in common use." Does that automatically mean a ban on the new product/design is constitutional?

    I'm looking forward to your response(s).

    1. OK - this reply is very late, but just in case someone comes across this in a search, I'll go ahead and reply.

      Archer, you raise some good points - and I will try to respond. The common use test so far has been VERY good for us, but it clearly isn't perfect. At some point something is going to come along that it just does not logically apply to. What SCOTUS will decide at that point is unknown.

      Re: The Hughes Amendment - If the heavy restrictions in the NFA are legal because full auto firearms are were in common use before it was enacted, than this probably isn't an issue. Now if you could establish that there was a great deal of interest in NFA items after the NFA took effect, maybe the entire virtual ban could be challenged. However, at this point in time, arguing for the legalization of machine guns would be bad for the overall gun rights cause. There are more important battles to fight.

      Now as for new designs, at this point the high court seems focused upon "lineal decedents"- hence all manor of rifles, shotguns and pistols are legal because rifles, shotguns and pistols existed at the time the 2nd Amendment was enacted. The kind of action doesn't really matter - remember that a fully automatic weapon technically is not defined by action type - but by how many rounds of ammo are fired with each trigger pull. For instance a double barrel shotgun, modified to fire both barrels with one trigger pull would be considered "fully automatic". Thus, many new kinds of firearms within the three broad categories of rifles, pistols and shotguns would automatically be accorded 2nd Amendment protection. Now if someone invents a Ray Gun, all bets are off :)

  6. Here's a good read


  7. First, there are LOTS of flaws in the Heller decision, and we should not look at it as gospel. For instance, it created the notion of acceptable restrictions out of thin air, instead of from the Constitution. Second, there are holes in the above arguments. For instance, in the "common use" item, machine guns are not in common use not because no one wants to use them, but because they are heavily restricted by law and even manufacture or importation of new ones which could ever find their way to the civilian market has been completely illegal for nearly 30 years. If you ban new tennis shoes for 30 years and heavily restrict old ones, then they probably won't be in common use either. But that doesn't make the ban Constitutional.

    1. That was my point above. Artificially limiting the supply creates a Catch-22 with the "common use" standard. It will never be "in common use" because it will, by mandate, always be uncommon, and will become less common over time as items and parts wear out or break and can't be replaced.

      Nice analogy with the tennis shoes, btw.

      "Common use" is an incomplete standard at best. We'll take it for now, because it's better than we had before (i.e. no standard, and open season on "scary"-looking guns), but it will not and cannot be the end-all definition of what is or isn't Constitutional.

      Still looking forward to the author's response.

    2. Sorry to all for the long response.

      Heller is not perfect. I didn't write it - but SCOTUS did. We have to live with it - but as someone who has been paying attention to this for about 50 years, I can tell you that it is much, much better than we ever thought we would get. Remember the NRA never brought a 2nd Amendment challenge because the conventional wisdom was that we would loose. After all, literally generations of lawyer were taught that the 2nd Amendment only protected the militia. Did we get everything we wanted in Heller and McDonald? Of course not! Did we win a victory that we can build upon for many years, expanding gun rights? Absolutely. Is it so bad for the gun ban crowd that they still haven't figured out how little they can do now? It sure is.

      Even in the future, any attempt to expand upon Heller will have to be done very carefully in order to avoid loosing ground. This is not to say that it can't be done - just that it would have to be done carefully. It would probably be wisest to wait until Heller is very firmly established - by that I mean that many other cases have been decided using it as a precedent.

    3. Your criteria of "common use" is weak at best. The prevenient fact that machine guns, sawed-off shotguns, etc. are so heavily regulated (read that legislated against, as opposed to being well trained) and therefore expensive, is a primary factor in their less common usage.