Tuesday, December 11, 2012

Comprehensive Gun Control: The Options Are Limited

Nearly every day on Twitter – and I’m sure this happens on other social media platforms I may or may not be temporarily boycotting – I see people clamoring for what I’ll refer to generally as comprehensive gun control laws. More specifically, and more predictably, I see frequent demands that Pres. Obama (of course) do something right now! to curtail gun violence in America. As if he were the only person in a position to deal with gun violence, or even the person in the best position to deal with it.
But there it is. My fellow liberals want gun control, or, more accurately, more gun control than we currently have.
Ordinarily, the comments I see are fairly vague; so I have to read between the lines a bit. I presume my fellow liberals who demand more gun control (usually in response to some horrible tragedy or another) want more than just, say, licensing and registration requirements, although those things are usually part of the mix. I presume that “more gun control” includes some or all of the following:
Ø    Restricting who can own guns; or, more aptly, delineating categories of people who can be prevented from owning guns – violent felons; mentally ill people who might be a danger to themselves or others; anyone against whom an order of protection has been entered; suspected terrorist (including domestic terrorists);
Ø    Requiring individuals who own guns to undergo some form of training, minimally with regard to safe handling and storage of weapons;
Ø    Prohibiting the ownership of certain kinds of particularly dangerous weapons
Ø    Restricting or prohibiting sales across state lines;
Ø    Restricting or prohibiting buying guns from, or selling guns to, individuals located outside the United States;
Ø    Background checks for people who attempt to purchase guns wherever guns are sold, including, of course, gun shows and other private sales of weapons;
Ø    Limiting the quantity and types of ammunition a gun owner can purchase;
Ø    Increasing sentences for individuals who commit crimes with guns;
Ø    Penalizing individuals who fail to take adequate safety precautions or who use or store guns negligently, when death, injury or significant property damage occurs as a result; and
Ø    Restricting the places where people can carry weapons and the manner in which weapons are carried in public.
For what it’s worth, I’d like to see a comprehensive federal gun control statute that encompasses all those principles, too, although the Brady Handgun Violence Prevention Act, popularly referred to as the “Brady Bill,” contains some of those provisions.
But, of course, as my fellow liberals should know (and if you don’t know … why don’t you know?!), the Supreme Court has made that difficult to accomplish. In two recent cases – District of Columbia v. Heller, No. 07-290 (June 26, 2008), and McDonald v. City of Chicago, No. 08-1521 (June 28, 2010) – Supreme Court held that the Second Amendment to the United States Constitution creates an individual right to keep and bear arms, which, although not unlimited, prevents both the federal government (Heller), and state and municipal governments (McDonald), from imposing the most direct (and perhaps draconian) form of gun control: Outright bans on handgun ownership.
And, as if to demonstrate just how difficult it is to craft meaningful gun control legislation in the wake of Heller and McDonald, today the U.S. Court of Appeals for the Seventh Circuit, which sits in Chicago, ruled that Illinois’ ban on carrying concealed weapons in public violates the Second Amendment as interpreted by the Supreme Court. From our local NPR station, WBEZ:
In a big victory for gun rights advocates, a federal appeals court on Tuesday struck down a ban on carrying concealed weapons in Illinois — the only state where it had remained entirely illegal.
The 7th U.S. Circuit Court of Appeals said state lawmakers have 180 days to write a new law that legalizes concealed carry.
“The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside,” Judge Richard Posner wrote in the court’s majority opinion. “The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense.”
He continued: “Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden.”
The court ordered its ruling stayed “to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public,” Posner said.
In light of Heller and McDonald, I think Judge Posner is probably right. Which is not to say I like the outcome, but I believe his ruling is consistent with the Supreme Court’s holdings in those cases, and a Court of Appeals judge is duty bound to follow Supreme Court precedent. As an aside, it’s worth noting that although he’s considered to be one of the more conservative federal appellate judges, Judge Posner joined fellow conservative Judge Frank Easterbrook’s opinion upholding the city of Chicago and Village of Oak Park handgun bans the Supreme Court ultimately struck down in McDonald. See National Rifle Association of America, Inc. v. City of Chicago, 567 F.3d 856 (7th Cir. 2009).
But Heller and McDonald are the law of the land, and, as Judge Posner noted today, those cases created a fairly broad right to keep – and to carry – handguns and a variety of other similar weapons, subject to minimal intrusion by the state. The question, then, isn’t, What could we do if the government had unlimited power to stop gun violence? but What state intrusions are permissible after Heller and McDonald? And to answer that question, you have to look to what Heller said about the powers government retains after the Court acknowledged the existence of an individual right to keep and bear arms:
Like most rights, the right secured by the Second Amendment is not unlimited. 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. [Citations] 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. [Citations] Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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.
We also recognize another important limitation on the right to keep and carry arms. [United States v.] Miller [, 307 U.S. 174 (1939)] said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” [Citations]
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
Heller, slip op. at 54-56 (footnote omitted; emphasis supplied).
So while the government’s powers are significantly curtailed after Heller and McDonald, those powers are not nonexistent. It seems to me that rather than demanding the President – or Congress, or your state’s governor or legislature – enact sweeping gun control legislation in the current legal and constitutional environment, what we really need is a calm, rational, thorough analysis of what types of gun control legislation are still constitutionally permissible after Heller and McDonald, and what constitutionally permissible forms of gun control are likely to be effective.
I know. It’s boring. It may take a long time. It doesn’t feel as good as it does to demand immediate, sweeping action. But railing against political leaders for failing to do things they’re not constitutionally permitted to do accomplishes exactly nothing.


  1. Dave:

    I spend an inordinate amount of time on a blog that is infested with gunzloonz (mikeb302000). When I say gunzloonz, I don't mean people that like gunz, own gunz, carry them and use them. I'm talking about people who claim that the 2nd Amendment is inviolable and that they WILL have as many gunz as they want and that NOBODY can stop them. They frequently assert that they are the last bulwark against fascism in this country and that, well, by GOD, they will protect their RIGHT to keep and bear arms, even unto death, yada, yada. It's all quite predictable.

    The people I'm speaking of have said that they will resist any government attempts to confiscate or otherwise interfere with them and their gunz. The bottom line for these people is not "The law of the land", it's the law that's in their heads.

    The longer they rant about their collections, their proficiency with their guns and their superior ability to determine and neutralize "threat", the more they convince me that they are precisely the sort of persons that I would prefer not have large collections of firearms.

  2. And yet, if faced with an armed person in a uniform who was pointing a gun at them and demanding that they turn over their gunz, they'd do it timidly. Then rush off to Tweet about how furious they were!