Post-Newtown gun legislation will hinge on 'Heller'
The National Law Journal
If Congress opens a serious debate on new federal restrictions on firearms in the wake of the Newtown school shootings, the U.S. Supreme Court's landmark Second Amendment decision will be fodder for proponents and opponents.
Not surprisingly, both sides in the gun control debate, at loggerheads for decades, disagree on how much room the 2008 District of Columbia v. Heller decision offers for new regulations, particularly of the assault-type rifle used to kill 20 children and six adults on December 14.
However, they do agree that it is only a matter of time before the Supreme Court steps back into Second Amendment debates, which currently are playing out in litigation around the country over various state and local gun regulations.
The Heller decision offers "a lot of room" for Congress to act, said Jon Lowy, director of the Legal Action Project of the Brady Center to Prevent Gun Violence.
"The Supreme Court was clear in Heller that while law-abiding, responsible citizens have the right to a gun in the home for self defense, there is a wide variety of sensible gun laws that remain constitutional," explained Lowy. "Assault weapons and background checks for all gun sales and other sensible restrictions would clearly be permitted by the Second Amendment."
A proposal to ban so-called assault weapons, such as promised recently by Senator Dianne Feinstein (D-Calif.), would raise "serious problems" under Heller, countered David Kopel, research director of the Independence Institute, who was part of the legal team challenging the District of Columbia's gun restrictions in the Heller case.
"The Second Amendment does protect weapons typically possessed by law-abiding citizens for lawful purposes," he said. "There's just a matter of logic here. These [assault] guns are cosmetically different but not functionally different; they fire one bullet every time pressed, just like any normal gun."
The gun used in the Newtown school shootings was the AR-15, "one of the most popular firearms in the U.S. these days," he added. "It probably outsells every other model. Is it occasionally misused in crimes? Yes, but certainly at a lower rate than handguns as a class are misused in crimes. Therefore, Heller appears to forbid a ban on such guns."
In Heller, a 5-4 majority, led by Justice Antonin Scalia, held that the Second Amendment protects an individual right to possess a gun unconnected with service in a militia, and to use the gun for traditionally lawful purposes, such as in the home for self defense. The decision invalidated the District of Columbia's handgun ban considered the strictest in the nation and its requirement that firearms kept in the home be disassembled or have a trigger lock.
However, the majority also said the Second Amendment right is not unlimited, and gave examples of some limits.
"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," wrote Scalia. "For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues."
Nothing in the Heller ruling, he said, should be read 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."
Another "important limitation," explained Scalia, was contained in the justices' 1939 decision in Miller v. U.S. "Miller said, as we have explained, that the sorts of weapons protected were those 'in common use at the time.' We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons,' " he wrote. Based on Miller, the Second Amendment does not protect weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns, he added.
The federal assault weapons ban, enacted in 1994, expired in 2004. That law had two bans: one on assault guns and another on high-capacity magazines holding more than 10 rounds of ammunition. Feinstein, the sponsor of the 1994 law, said her latest proposal will again ban both.
"Even before Heller, there were assault weapons bans challenged both on Second Amendment grounds and state right-to-bear arms provisions, and the bans were upheld," said Lowy of the Brady Center. "Connecticut, which has an assault weapon ban, does not ban high-capacity magazines."
But Kopel said the Second Amendment protects firearm accessories that pass the Heller test as well as firearms. He noted that New York Mayor Michael Bloomberg is advocating a ban on magazines holding more than 10 rounds.
"About three-quarters of all handguns sold in the U.S. today are semi-automatic as opposed to revolvers," said Kopel. "A great many modern semi-automatics have magazines which hold between 11 and 19 rounds. These would also seem to pass the Heller test because they are commonly used by law-abiding citizens for lawful purposes and extremely common."
Magazines of 30 to 40 rounds are also commonly possessed for rifles, he said, and 50-round magazines for rifles or 35 rounds for handguns also are "overwhelmingly" possessed by law-abiding citizens for lawful purposes, although not as "ubiquitous."
The language in Miller about "commonly used by law-abiding citizens for lawful purposes," is not entirely clear, acknowledged Kopel. Must the weapon be popular and commonly used by law-abiding citizens for lawful purposes, or just mainly used for lawful purposes, he said. But he said he would argue that all of the different magazine rounds pass the Heller test.
Last October in a speech before the Brady Center, retired Justice John Paul Stevens weighed in on Heller and recent shootings.
"Even though a sawed-off shotgun or a machine gun might well be kept at home and be useful for self-defense," he said, "neither machine guns nor sawed-off shotguns satisfy the 'common use' requirement. Thus, even as generously construed in Heller, the Second Amendment provides no obstacle to regulations prohibiting the ownership or use of the sorts of automatic weapons used in the tragic multiple killings in Virginia, Colorado and Arizona in recent years. The failure of Congress to take any action to minimize the risk of similar tragedies in the future cannot be blamed on the Court's decision in Heller."
The Supreme Court has passed up opportunities to revisit the Second Amendment since its last pronouncement in McDonald v. City of Chicago in 2010. That decision applied the Second Amendment to the states.
Since then, courts have been "all over the place" in their analyses of state and local gun regulations under challenge, said Alan Gura of Gura & Possessky, who successfully argued the Heller and McDonald cases in the Supreme Court.
"Right now there are a variety of Second Amendment disputes working their way up to the Supreme Court," said Gura. "We're having conflicting opinions by appellate courts on the extent to which local governments can regulate the carrying of guns outside the home for self defense."
Last week, a 2-1 panel of the U.S. Court of Appeals for the Seventh Circuit struck down Illinois' statewide ban on carrying concealed weapons. A unanimous Second Circuit panel last month upheld New York's law requiring individuals to demonstrate a special need to carry a concealed weapon in order to get a permit.
Gura is involved in both cases and said he intends to file a petition for review of the Second Circuit decision in the Supreme Court. "It doesn't have that much immediate relevance to what happened in Connecticut," he said.
The Brady Center's Lowy noted there are cases involving restrictions on the carrying of guns in public now pending in the Fourth, Ninth, Seventh, First and Tenth circuits. "Within the next few months, when those decisions come down, we'll have a much better sense of whether there is serious disagreement among the circuits," said Lowy.
Gura said the disagreement over the scope of the Second Amendment should not be portrayed as between those who care about what happened in Newtown and those who are oblivious to it.
"I agree with the president that something should be done to stop this madness," said Gura. "We may disagree about what it is that should be done. There is consensus we need to do something so that this is less likely to occur."
Marcia Coyle can be contacted at email@example.com.