I never intended this to become a Second Amendment blog. When I wrote last week (here and here) about Michael Moore, et al. v. Lisa Madigan, et al., Nos. 12-1269 and 12-1788 (7th Cir. Dec. 11, 2012) (.pdf), a case in which the federal Court of Appeals in Chicago struck down certain provisions contained in the Illinois Criminal Code pertaining to carrying handguns outside the home, I, of course, had no way to anticipate the horrific events of December 14, 2012, in Newtown, Connecticut. It was just an awful coincidence that the Seventh Circuit decided a major gun control case just three days before (yet another) mass school shooting.
It’s no surprise, however, that in the aftermath of the Sandy Hill Elementary School killings, gun control has become the hot topic on the internet. Last night, when Pres. Obama addressed the interfaith memorial service there, self-appointed guardian of liberal purity Bill Maher tweeted:
Obama speech: step forward (minus the religious bs), but still can't say the word "guns"; like the NRA literally has guns to our heads
— Bill Maher (@billmaher) December 17, 2012
… Despite the fact that the President did, in fact, specifically refer to “mass shootings”:
Since I’ve been President, this is the fourth time we have come together to comfort a grieving community torn apart by a mass shooting. The fourth time we’ve hugged survivors. The fourth time we’ve consoled the families of victims. And in between, there have been an endless series of deadly shootings across the country, almost daily reports of victims, many of them children, in small towns and big cities all across America — victims whose — much of the time, their only fault was being in the wrong place at the wrong time.
True, he didn’t use the magic word “guns.” But by any reading, Maher’s criticism was flat out inane.
More to the point, in the past few days we’ve all seen demands that the government take bold action to restrict access to guns, along with sharp criticism of organizations like the National Rifle Association and their supporters who believe the Second Amendment confers a personal right to keep and bear guns. And so when I tweeted earlier today that, given the Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, ___ U.S. ___, 103 S. Ct. 3020 (2010), we’re beyond the point of arguing what the Second Amendment should mean – that we’re stuck, for the time being, with the Supreme Court’s rulings on the matter – that struck a nerve with certain people I follow. Their objections being: The Supreme Court was wrong; eventually Heller and McDonald will be overturned; and we should repeal the Second Amendment anyway.
Each of those observations may or may not be valid (I tend to think the outcome in Heller is more defensible than the outcome in McDonald), but it is nonetheless beyond dispute that Heller and McDonald are the law of the land today. If people are committed to overturning those decisions and/or repealing or modifying the Second Amendment, I say: Have at it. Just recall that it can take years, even generations, to get the Supreme Court to reverse course; and possibly even longer to pass a constitutional amendment both in Congress and in the states. Fifty-eight years passed between the Court’s odious decision in Plessy v. Ferguson, 163 U.S. 537 (1896), and its repudiation of “separate but equal” in Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954). Even more recently, Bowers v. Hardwick, 478 U.S. 186 (1986), which upheld Georgia’s criminalization of gay sexual relations, survived a good seventeen years before the Court reached its landmark decision in Lawrence v. Texas, 539 U.S. 558 (2003). And as for constitutional amendments? The last one passed in 1992, a little over twenty years ago. The Equal Rights Amendment passed through Congress in 1972, but was ratified by only thirty-five of the necessary thirty-eight states and never became law; Indiana was the last state to ratify it … in 1977. That’s thirty-five years ago, if you’re keeping score.
Now I’m not saying that working towards overturning Heller and McDonald or pushing for a constitutional amendment on gun control is tilting at legal windmills. I’m saying that if the proliferation of guns and gun-related violence in America is in fact a crisis – and the evidence sure suggests it is – we can’t wait decades to address it. And if you believe, as I do, that that crisis requires us to look at all possible means of addressing it, including taking a hard look at the gun laws that are on the books and asking whether we can provide a better, safer regulatory scheme, then we have to ask, as I did last week, what legal options remain available after the Heller and McDonald cases. Because that’s the legal environment we’re operating in right now … and for the foreseeable future.
So, where does that leave us? Well, as controversial as those decisions were, the Court did delineate, at least in broad categories, the types of gun control measures that would not infringe on the newly recognized personal right to keep and bear arms. If you take a look at the language I quote from Heller toward the end of this post, the Court identifies at least five such categories of still-viable gun control measures:
Ø Laws preventing carrying concealed weapons in public;
Ø Laws preventing felons and mentally ill people from owning weapons;
Ø Laws prohibiting guns in “sensitive places” – e.g., schools, government buildings;
Ø Regulations on the conditions of the sale of guns; and
Ø Laws banning ownership of military-type weapons (“M-16 rifles and the like,” in the Court’s words).
And it’s not unreasonable to infer from the Court’s (non-exhaustive) itemization of permissible forms of gun control – particularly from the second and fourth items listed above – that registration and licensing requirements for both the purchase and sale of guns, including background checks, waiting periods, and possibly even training and certification rules, would be upheld, along with limitations on private gun sales and sales at guns shows and so forth. Moreover, of particular concern after Sandy Hill: the last item the Court discusses makes it plain that a carefully drafted assault weapons ban would, in fact, be constitutional even after Heller and McDonald.
It may not be much; it certainly doesn’t allow for banning all handguns and rifles. But if we’re serious about taking a hard look at our gun laws as a part – a part – of the solution to the crisis of gun violence here, there are steps we can take today.