Construction Literary Magazine

June 2019

After Newtown: The Second Amendment and Gun Control

After Newtown: The Second Amendment and Gun Control

Photograph via Lennie Jarratt

I. Introduction

Long relegated to the political junk heap, gun control was largely an afterthought during the recent presidential election. But the horrific mass murder at Sandy Hook elementary school in Newtown, Connecticut, along with other recent mass shootings at a movie theater in Aurora, Colorado and a Sikh temple in Wisconsin (not to mention a Pennsylvania mass shooting during the NRA’s press conference addressing Newtown), as well as the shooting of U.S. Congresswoman Gabrielle Giffords and others (including federal district court judge John Roll, who was killed), has forced America to reevaluate its relationship with firearms.{{1}} Senator Frank Lautenberg and Democratic allies in the House are pushing for bans on high-capacity ammunition magazines before year-end, while Senator Diane Feinstein is set to introduce gun control legislation at the start of the new congressional term in January. President Obama has voiced his support for such measures, indicating the potential for the first comprehensive federal gun control measures in almost two decades; that is, assuming that such legislation could make it past the Republican-controlled House of Representatives.

Despite years of grandstanding about the Second Amendment from both sides of the gun control debate, the actual scope of the right to bear arms was largely ambiguous until the Supreme Court’s landmark 2008 decision in District of Columbia v. Heller. In Heller, a sharply-divided Court ruled that the Second Amendment provides an individual the right to own a firearm that is “typically possessed by law-abiding citizens for lawful purposes,” thus rendering the District of Columbia’s total ban on private handgun possession unconstitutional.{{2}} Heller was followed by the Court’s 2010 decision in McDonald v. Chicago, which applied this individual right to bear arms to state governments.{{3}} With the constitutional dust settled, both the federal government and the states are bound to follow the Second Amendment, at least as interpreted by the Supreme Court (SPOILER ALERT: WE TALK ABOUT THIS BELOW!).

Will the combined weight of Heller and McDonald halt the post-Newtown gun control legislation in its tracks? In a word: no. While the efficacy of future gun control measures is up for debate, and the politics might be insurmountable, the reality is that most gun control measures will likely pass constitutional muster.

II. The Second Amendment

[quote]A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.[/quote]

(That’s the Second Amendment . . . all of it).

District of Columbia v. Heller involved a challenge to D.C.’s draconian gun control laws, which made it a crime to carry an unregistered firearm . . . but then prohibited the registration of handguns altogether (with certain exceptions for law enforcement personnel). D.C. law also required residents to keep their lawfully owned firearms, such as registered rifles and shotguns, “unloaded and dissembled or bound by a trigger lock or similar device” unless they were located in a place of business or were being used for lawful recreational activities (such as shooting Republicans in the face with birdshot). A group of D.C. citizens led by Dick Heller, a police officer who was prohibited from keeping his service weapon in his home and had unsuccessfully applied for a handgun permit, challenged the ban as a violation of the Second Amendment.

In an opinion that spent an inordinate amount of time analyzing the effect of the Second Amendment’s grammatical structure and comma placement (what is a “prefatory clause” anyway?), the Court, led by Justice Scalia, found that the Second Amendment bestows “the individual right to possess and carry weapons in case of confrontation.” The majority rejected the argument that the Second Amendment’s guarantee applies solely to members of a state militia, pointing to historical evidence that the Second Amendment codified a then-existing individual right to bear arms in self-defense that was wholly separate from any sort of organized military context.

The burden of D.C.’s gun control ban on that right, and the Court’s focus on the use of guns for traditionally lawful purposes, were crucial to the decision: the majority found that the ban amounted to outlawing an entire class of “arms” that many people lawfully use for self-defense. By comparison, the Court found “weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns,” did not fall within the Second Amendment’s historical ambit and was not protected. As a result, the Court included this potentially all-important caveat:

[quote]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.[/quote]

Gun advocates who considered Heller and McDonald to sound the death knell for any restrictions on gun ownership have been disappointed, as lower courts have seized on the Court’s qualifications on the right to bear arms to justify a host of gun control laws. For example (and among many other things), courts have since held that Heller and McDonald did not nullify federal laws prohibiting gun ownership for individuals convicted of domestic violence, do not prohibit requirements that gun purchasers answer questions about whether they are subject to a restraining order, do not nullify state bans on assault weapons, and do not allow self-identified members of a “state militia” to own unlicensed machine guns as part of their “militia duties.”

What, then, does the current state of gun control look like in America, and what are the types of measures that Heller and McDonald could allow states and the federal government to enact in the wake of Newtown and similar tragedies?

III. Current gun control measures

At the federal level, there are only a handful of major restrictions on gun ownership. Fully automatic guns and sawed off shotguns were effectively banned under FDR in a crackdown against “gangster” weapons. Felons and the mentally ill are also banned from owning guns. Gun dealers have to be federally licensed, though private sellers can sell guns to each other (the so-called “gun show loophole”) without oversight: for example, guns sold at gun shows, through classified newspaper ads and the Internet, and between random individuals. That’s about it.

The 1994 “assault weapons” ban, which expired in 2004, essentially banned scary looking guns; there is no class of guns actually defined as “assault weapons” (and that’s arguably the point of any gun—to assault). Instead, the law basically banned rifles with certain characteristics, including large magazines, pistol grips, and flash suppressors. The problem with this cosmetic approach to banning guns (which some states still use, including Connecticut and California) is that manufacturers and gun owners didn’t have to do much to get around the ban. Moreover, the law exempted assault weapons currently in circulation, which amounted to about 1.5 million guns. Most importantly, because the assault weapons ban only applied to cosmetics, and not to the caliber of the rounds being fired, the ban didn’t do much to actually stop the sale of arguably more dangerous guns. The prototypical “assault weapon” banned under the 1994 Act is a .223 caliber semi-automatic rifle, which, despite being used in multiple mass killings (including Newtown), fires a relatively small caliber round. By comparison, even under the ban, you could legally buy a semi-automatic rifle shooting much more powerful rounds as long as the gun didn’t “look like an assault rifle” by including the aforementioned cosmetic characteristics that supported prohibition.

Things are not much better at the state level: according to the Brady Campaign to Prevent Gun Violence, very few states have comprehensive gun control laws. The Brady Campaign ranks states on a point system based on whether the state regulates gun dealers, limits bulk purchases of guns, records and retains information regarding gun sales, takes measure to “fingerprint” guns in case they’re ever used in a crime, requires reporting of lost and stolen guns, requires background checks and permits to purchase guns, regulates ammunition sales, bans assault weapons and high capacity magazines, requires child safety protections such as trigger locks and age limits, and allows guns in public places. In 2011, on a 100-point scale, the Brady Campaign found that thirty-eight states had scores of fifteen points or below; by comparison, only six states (led by California) had scores of fifty or above. While the rankings may strike some as subjective, the bottom line is that gun control is not a high priority for most state legislatures; and in fact, following the Republican sweep of many state legislatures in the 2010 midterm elections, state-level pro-gun laws have actually exploded.

But enough with current legislation—what can be done in the future? And will it be constitutional?

IV. Potential future gun control measures

At the outset, any talk of banning all guns outright is off the table, short of an amendment to the Constitution (not that some aren’t pushing it) or replacing a majority of the Supreme Court. Under Heller and McDonald, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table,” which includes “the absolute prohibition of handguns held and used for self-defense in the home.” Although the Heller opinion affirmatively chose not to set the standard of judicial review for the constitutionality of gun laws, the rationale of the Heller majority indicates that gun control laws are likely acceptable so long as they don’t overly burden an individual’s right to self-defense. So, what types of laws can pass muster?

Gun control laws can be broken down into one of several categories; “what” restrictions affect the types of guns or ammunition can be legally bought and used (such as the assault weapons ban); “where” restrictions affect the location where guns may be legally carried, used, or prohibited (such as “Gun Free School Zones” laws); “who” restrictions affect the types of people who can buy guns (such as felons); “how” restrictions affect the manner in which guns must be stored (trigger locks); and “when” restrictions concern the time and manner of the background checks and waiting periods required to purchase a firearm. Below, we address some of the potential restrictions that are under debate post-Newtown.

A. “What” restrictions

A revamped assault weapons ban would probably be constitutional. In fact, the very reason that an assault weapons ban has been criticized as ineffective is why it is likely appropriate under Heller: people can still defend themselves with guns that don’t have the certain banned cosmetic features, and thus assault weapons bans don’t unduly impede the right to self-defense. Laws against particularly large caliber guns are also likely constitutional. Because you can defend yourself pretty well with a .44 magnum, it’s hard to argue you need a .50 caliber rifle—or, say, a nuclear warhead (sorry, Loc Dog)—to do the same thing. It would also likely be a hard sell to argue that restrictions on high capacity magazines (such as those used in numerous mass shootings) are unconstitutional: a ten-bullet clip should be plenty to defend yourself, and if you need a thirty- (or more) round clip for self-defense, you’re probably either on active duty in the military or reaaaaaallllly need to call the police.

By comparison, recent arguments for an absolute ban on all semi-automatic weapons would be a far closer call. Semi-automatic weapons fire a bullet each time the trigger is pulled, remove the need to cock the hammer (snicker) before each shot is fired (a feature of some non-semi automatic weapons), reducing the force needed to pull the trigger, and making it easier and faster to reload. These are both useful, and traditional, features for self-defense that allow for much more effective defense against a home intruder. Because most popular handguns, and many rifles and shotguns are semi-automatic, a flat ban could be seen as the equivalent of banning an entire class of arms typically used by law abiding citizens, which was expressly ruled unconstitutional in Heller. Of course, the fact that a mass shooter can also use these same features against school children or others is obviously problematic, and could be used as an argument that these types of weapons (and their ammunition) can and should be banned in some contexts, particularly outside the home.

B. “Where” restrictions

While there are many concerns about where an individual can carry a gun, some are uncontroversial. For example, the ban on loaded guns in airplane carry on bags makes sense, as there’s not much of a need to defend yourself when there are air marshals flying around undercover (not to mention the strong government interest in not having planes’ pressurized fuselages explode open from a bullet hole). But after Newtown, the big question is the presence of guns at schools.

The federal Gun Free School Zone Act currently bans guns on the grounds of or within 1,000 feet of schools (public, parochial, or private, although with certain exceptions). This is explicitly constitutional under Heller, as public safety at “sensitive areas” like schools can outweigh self-defense concerns. But the policy has come under fire (excuse the pun) from gun advocates, who believe that the lack of guns in school zones make schools a particularly enticing target for criminals. For example, in the wake of the Newtown massacre, NRA executive vice president and CEO Wayne LaPierre called on Congress to fund armed guards at every school in the country, while Texas congressman Louie Gohmert lamented that Newtown could have been avoided had Sandy Hook principal Dawn Hochsprung kept an arsenal in her office (this comes from the guy who blamed the Aurora shootings on society’s attack on Judeo-Christian beliefs). Ignoring the wisdom or politics of these arguments (keep in mind that there was an armed guard at Columbine), as well as the irony that adopting the NRA’s plan of posting armed guards in schools would probably obviate Gohmert’s plan for seeking additional self-defense by letting teachers packing heat, there is little controversy that allowing or prohibiting guns in school zones would likely pass muster under the Second Amendment

C. “Who” restrictions

As discussed above, felons and the mentally ill are already prohibited from buying guns, restrictions specifically upheld in Heller. Similar laws, such as banning people with a conviction for domestic battery or other violent offenses from buying guns, are already on the books in many states. These, too, are constitutional based on the strong public interest in keeping dangerous or potentially unstable people away from guns. Other proposed laws include, for example, banning gun purchases by people accused of drug offenses, even if they’re not convicted.

But there is little doubt that individuals who commit mass murders are mentally ill (perhaps most notably Virginia Tech shooter Seung-Hui Cho) and felons with illegal guns commit many day-to-day gun crimes. Part of the problem may be that state and federal laws are often ambiguous or seemingly conflict, and that an inadequate background check can undercut even the harshest gun control measures. Critics have also panned existing screening measures as ineffective and full of loopholes. Just as much as enacting new laws, lax enforcement of existing laws contributes mightily to the ability of people to illegally obtain guns.

As noted, federal law requires background checks at gun stores, but not in private transactions like at gun shows or in private sales between individuals. Requiring background checks for all purchases, regardless of location or vendor, would probably be constitutional under the Second Amendment: rather than presenting a significant burden on self-defense (you still get to have a gun, you just have to get a background check first), and would help ensure “lawful” ownership and possession, something emphasized in the Heller decision (while likely enraging many current or prospective gun owners, who would be required to jump through far more hoops than they otherwise would). Moreover, the vast majority of Americans (even NRA members) support enhanced waiting periods and prohibitions on gun ownership by the mentally ill. While likely constitutional, effectiveness and enforcement maybe be more pressing.

D. “How” restrictions

After Sandy Hook, many have demanded more restrictions on keeping guns in the house: after all, Adam Lanza wasn’t able to buy his own guns under Connecticut law and used his mom’s instead. New laws on how to keep guns in the home may be constitutional—to a point. Heller noted in passing that the decision did not “suggest the invalidity of laws regulating the storage of firearms to prevent accidents.” Presumably, laws requiring trigger locks or other basic safety measures to prevent accidental shootings are all constitutional. But the level of security required to keep a teenager from accessing guns in a house could be so extreme that it would unconstitutionally burden the right of self-defense; for example, Heller overturned a law that required keeping guns disassembled in the home as unconstitutional. Setting clear parameters in this area of the law will likely require further political and legal wrangling.

E. “When” restrictions

Despite what this guy and this guy might have you believe, it’s against the law to shoot guns while intoxicated. But in some states, you also have to wait between trying to purchase a gun and getting to pick it up, apparently to “cool off” before going on a rampage. For example, New York’s waiting period for handguns can run six months or longer, while Massachusetts makes you wait at least a month for any gun purchase. These laws may be a “burden” in the sense that they set an additional hoop to jump through for gun owners, but they’re likely constitutional: they don’t prohibit the purchase of a gun, just slow the process down. If you want to defend yourself (or star in a video aptly entitled “Gun Accidents”), plan ahead!

V. Conclusion

The horror at Sandy Creek has rightfully brought America’s disproportionately high level of gun ownership and gun violence to the forefront. While reasonable (or unreasonable) minds may disagree as to the best approach to curb the scourge, District of Columbia v. Heller appears to have had a relatively minor effect on the constitutionality of gun control measures. Rather, aside from flat bans, it seems that most gun control issues will have to be answered in the political arena. Whether lawmakers will answer the call to prevent future massacres remains to be seen.

[[1]]Although, some would argue that we already have had this debate, and gun control advocates lost.[[1]]

[[2]]The Court also found that D.C.’s requirement that lawfully held weapons (such as rifles and shotguns) be kept disassembled or under trigger locks in the home to be an equally unconstitutional infringement on the Second Amendment’s right to keep firearms for the purposes of self-protection.[[2]]

[[3]]Washington D.C. is a “federal enclave,” rather than a state, and thus there was some question about whether the Heller decision applied to state governments, as opposed to other federal enclaves like national parks or military bases.[[3]]