The current state of Second Amendment jurisprudence

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The current intensified debate triggered by the recent school shooting in Parkland, Florida, naturally gives rise to the very pragmatic question of what kinds of new laws or regulation would pass muster with the Supreme Court.  There have been significant developments in recent years in this area.

<Talk here about the status quo: the second amendment and a very quick picture of variations in state laws on gun ownership and the problems inherent in this.>


Recent Supreme Court cases

For most of the history of the US, Supreme Court interpretations of the Second Amendment were very rare, and a debate raged as to whether or to what degree the Amendment protected an individual right, as opposed to – for example – protecting the right of state militias to have weapons without permission of the Federal government.

That argument has now been settled by the Supreme Court in favor of an individual right to own guns, but what is still unsettled for the most part is the extent of that right and how it might be “well-regulated”.

  1. District of Columbia v. Heller (Wikipedia) – (link to decision)This case is considered a landmark case because it was the first case to find “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”The specifics of the case illustrate that some kinds of laws (in particular those overturned in the case) will not pass constitutional muster.  A ban on handguns in the home was found to be unconstitutional, as well as a requirement that a handgun must be either disassembled or have a trigger lock.At the same time, importantly for our current situation, the court found that the right is not unlimited, and affirmed the constitutionality of “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.”  Also mentioned as constitutional were restrictions on concealed weapons.
  2. McDonald v. City of Chicago – (link to decision)This case addressed the important constitutional question of “incorporation”.  Some parts of the Constitution apply only to restrict or define the powers of the Federal government, but since the Fourteenth Amendment, the majority of the Bill of Rights has been held to restrict the powers of the State governments as well.  McDonald v. City of Chicago ruled that the 2nd Amendment applies to the states.
  3. Caetano v. Massachusetts – (link to decision)

State Constitutions

Could the Second Amendment be repealed or changed?

Because the Second Amendment under its current interpretation greatly restricts the limits that can be placed on gun ownership by both the state and Federal governments, one way to approach the problem would be to amend the constitution.   The process for amending the constitution can be initiated entirely by the states, or by the two houses of Congress.   In either case, the amendment must then be approved by three quarters of the states.

The most recent amendment to the constitution, in 1992, prevented the legislature from granting itself pay raises during the current session.   Prior to that, the Twenty-Sixth amendment, passed in 1972, prohibited the federal government from restricting the right of citizens eighteen and older to vote.   Although the Twenty-Sixth amendment might seem similar to a repeal or update of the Second Amendment, it had substantial popular support and was passed unanimously in the national legislature.

A more comparable example would be the Equal Rights Amendment, which was proposed in 1972.   The idea had sufficient popular support and even political support in Congress to be successfully proposed.   But a national consensus on the issue did not exist.  As a result, despite a strong movement in favor of the amendment, it fell three states short of being ratified.

An update to the Second Amendment would face similar difficulties—despite widespread popular support for stronger controls on gun sales, a move to repeal or update the Second Amendment would not have a sufficiently strong national consensus to be ratified.  By comparison, passing a national gun control law that would pass constitutional review by the Supreme Court would would require much less unanimity on the issue.   So although there are frequently calls to update or repeal the Second Amendment, there is at present no serious effort underway to do so.

<Should we talk about the oft-skipped “well regulated militia” bit?>

Various legal changes that have been proposed

Raising the age of ownership for rifles to 21 – President Donald Trump has proposed that the Federal age of ownership for long guns (rifles and shotguns) be raised to match that for handguns. In response to the Parkland shooting, Governor Rick Scott of Florida (who is typically supportive of the gun lobby) enacted a bill which raised Florida’s legal age to 21 for buying rifles. Vermont raised the required age to 21 to buy guns in March 2018.

Banning “Bump Stocks” – Here is law professor Jonathan H. Adler’s analysis of whether this would be possibleCan the Trump Administration Ban Bump Stocks?  This story, though, only addresses the question of whether the Justice Department could interpret the already existing restrictions on fully automatic weapons to include bump stocks, and decides that this probably wouldn’t work.  The article presumes that Congress could remedy this through legislation. Connecticut banned bump stocks in May 2018. Lincoln, Nebraska banned bump stocks in March 2018. Rhode Island banned bump stocks in May 2018. Vermont banned bump stocks in April 2018. Washington state banned bump stocks in March 2018, effective July 2019.

Semi-automatic and assault weapons ban – Chicago suburb Deerland just passed an assault weapons ban in response to the Parkland shooting but it was temporarily blocked by a judge in June 2018 right before it was implemented due to two lawsuits. An Enquirer / Suffolk University poll found in June 2018 that two-thirds of likely voters would like the next governor of Ohio to work to ban semi-automatic guns and assault weapons such as the AR-15. An assault weapons ban was endorsed by the American Medical Association (AMA) in June 2018.

Arming teachers – President Trump has stated he supports arming teachers in order to prevent shootings like what happened at Parkland. In response to Parkland, Governor Rick Scott of Florida passed legislation that allows the arming and training of school staff with guns. Texas school officials have called for the arming of teachers with guns.

Bar sales to violent criminals – Rhode Island in May 2018 passed a “red flag” bill which would allow police to request an “extreme risk protection order” from a court, which would temporarily prevent someone from buying or having a firearm. Police could ask for an order in response to “red flags” like recent violent threads, including threats made in person or on social media.

High-capacity magazine ban

Universal checks for gun or ammo buyers – Sometimes referred to as closing “gun show loophole”

Bar sales to people with a serious mental illness – The New York Times reports that according to some experts, people with serious mental illness represent about 1% of all mass shootings, and an academic study has shown that less than 5% of all gun-related killings between 2001 and 2010 in the United States were committed by a person with a diagnosed mental illness. Therefore some experts such as John T. Monahan have concluded, “Research shows that the association between mental illness and violence is not strong, but it does exist.”

Bar sales to people deemed dangerous by mental health provider –

Bar sales to convicted stalkers or domestic abusers – New York passed legislation in March 2018 that would require people convicted of domestic abuse to turn over all firearms (before it was just handguns). It also prevents people from obtaining or renewing a gun license if they’ve received an arrest warrant for certain crimes. Governor Kate Brown of Oregon signed legislation in March 2018 which would prevent domestic violence offenders and convicted stalkers from buying or keeping a gun, and closed the perceived “boyfriend loophole” that allowed abusers or stalkers to continue owning a gun if they weren’t married to the victim.

Three-day waiting period – Governor Rick Scott of Florida passed legislation that introduced a 3-day waiting period for all gun purchases (which previously had only applied to handguns).

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