Saturday, June 15, 2013

Is Gun Control Unconstitutional?

Ever since the shooting in Newtown, Connecticut six months ago there has been a conversation in this country about gun control. Many on the Left assert that gun control is needed to ensure that situations like that which happened in Newtown do not happen again, while many on the Right assert that gun control measures would not have stopped that tragedy, and instead of restricting access to firearms, we must encourage their widespread availability.

The discussion over the efficacy of gun control measures will go on for years and years to come, but that is not what I am going to be discussing today. Instead, my goal is to clear up some of the common misconceptions that exist in relation to the constitutionality of gun control measures. I will not be addressing all gun control measures, or even attempting to go into the constitutionality of specific gun control measures – those instead will be for future posts on this matter. Instead, my goal is to clear up some of the rhetoric which exists that claims that ANY gun control measure violates the 2nd Amendment.

Many on the Right, led astray by the rhetoric of the National Rifle Association, believe that ANY gun control measure (whether that be background checks, magazine limits, assault weapons ban, or national firearm registration) violates the Second Amendment of the U.S. Constitution. I call these people “2Aer’s”, because of their extreme fealty to the literal words of the Second Amendment. 2Aers assert that the Second Amendment states that the right to bear arms “shall not be infringed”, and then continue to repeat that refrain as if that ends the conversation. Such a simplistic understanding of the Second Amendment, though making for a good sound bite, clouds what should be a rational discussion on gun control, and perpetuates the idea that exists on the Right that “liberals hate the Constitution”.  

The two most influential cases on the Second Amendment in the past decade would be the Supreme Court’s decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010). Heller dealt with D.C.’s complete prohibition on handguns in the home, striking down such a complete prohibition as violating the 2nd Amendment. McDonald, on the other hand, dealt more with whether the 2nd Amendment was applicable to the States (relying on SCOTUS’s incorporation doctrine manifesting out of the 14th Amendment).  These two cases laid out a framework in which other Courts in the United States could address firearm regulations and whether or not said regulations violated the 2nd Amendment. Unlike what 2Aers claim, though these cases established an individual right to possess a firearm, they did not forestall all governmental regulation of said right. In fact, Scalia, in writing for the majority in Heller, specifically states that “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”. (pg. 626-627 of the decision).  Furthermore, the majority in Heller, though not specifically stating as such, implies that regulations on the carrying of concealed weapons, as well as the restricting of certain types of weapons by the government (eg. assault weapons) would pass Constitutional scrutiny.

Because Heller and McDonald were not clear about how far government can go in regulating firearms, the Courts of Appeal throughout the United States have crafted a two-part test to address these situations. First, the Court will look at whether a particular provision impinges upon a 2nd Amendment right, and if it does, the Court will look at whether said provision passes constitutional muster under the appropriate level of scrutiny. An excellent example of how the Court addresses a regulation in relation to these two tests is found in the follow up case to Heller that was heard by the D.C. Circuit Court of Appeals in 2011. In that case, the Court looked at whether a basic registration scheme for both handguns and long guns was consistent with the 2nd Amendment. In finding such a registration scheme  passed the first test in relation to handguns, the D.C. Circuit Court stated that not only were basic handgun registration requirements a longstanding feature of American firearms law, but that any burden on the 2nd Amendment right was de minimis, as many other features of American life required registration . The registration requirements for long guns on the other hand, because there was not a longstanding practice in America of such a requirement, did not pass the first test, and instead had to be analyzed by the Court.

In Heller (2008), the Court found that rational basis review (that is, that the Government can basically have whatever policy it wants to as long as it has a rational basis for doing so) was not an appropriate standard of review for firearm regulations. Instead, the Court left open what standard of review was appropriate. If a firearm regulation burdens a right at the “core” of the 2nd Amendment (self-defense in one’s home), Heller suggests that strict scrutiny is an appropriate standard of review. Strict scrutiny is when a regulation has to have a compelling government interest, be narrowly tailored to that interest, and must be the least restrictive means to accomplish the government’s goal. Outside of the firearm regulations that burdened the “core” of the 2nd Amendment right, Heller left open the ability of lower Courts to use a less restrictive level of Court scrutiny (intermediate scrutiny) to analyze firearm regulations.  If a firearm regulation furthers an important governmental interest in a way that is substantially related to that interest the Court will find such a regulation Constitutional. Though in the follow up case to Heller, the D.C. Circuit could not rule on whether long gun firearm registration was constitutional (it did not have enough information), it deemed that such a regulation was deserving of intermediate scrutiny, as the regulations did not prevent an individual from possessing a firearm in the home.

In review, per current Supreme Court case law, the 2nd Amendment does not establish a complete ban on any regulation of firearms by the Government. Instead, the Court has left the Government a large amount of wiggle room in how it chooses to craft its firearm policies. As long as a firearm regulation does not burden the core of the 2nd Amendment right – that is, self-defense in the home – it likely will not be subject to strict scrutiny, and instead will be subjected to the less onerous intermediate scrutiny. Though the sound bite of “shall not be infringed” may play well to a rabidly pro-gun base, it does not tell the whole story behind the 2nd Amendment, and instead leads to an uneducated and ignorant populous.


As this is a very fluid and misunderstood area of the law, I will continue over the next few weeks to analyze specific gun control policies from a constitutional perspective. As always, I welcome any questions and comments that my readers may have. 
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