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.
