The U.S. Supreme Court and the Second Amendment
New York City restricts the ability of gun owners to transport their weapons outside the city, and this fall, the U.S. Supreme Court will decide if those rules violate the Second Amendment.
The case has the potential to topple an assortment of local and state gun laws across the United States. The impact on California, which has more gun regulations on the books than any other state, could be volcanic.
The reason state and local gun laws are at risk, or, put another way, the reason that gun rights could be strengthened, is that the U.S. Constitution’s Second Amendment, ratified in 1791, has only recently been interpreted by the Supreme Court to protect an individual’s right to keep and bear arms. And it was even more recently that the justices declared Second Amendment rights to be “fundamental” to liberty and therefore binding on the states through the Fourteenth Amendment, which bars any state from denying liberty to any person without due process of law.
The first case was District of Columbia v. Heller, decided in 2008. The second case was McDonald v. Chicago, decided in 2010.
Another interesting case is Maxwell v. Dow, decided in 1900. Bank robber “Gunplay” Maxwell complained that Utah had denied his Sixth Amendment right to trial by jury, but the Supreme Court ruled that it had been “many times decided” that the first 10 amendments “were not intended to and did not have any effect upon the powers of the respective states.”
Any fan of TV police dramas from “Dragnet” forward would have to wonder how state governments could ignore well-known constitutional rights. The answer is that unlucky “Gunplay” Maxwell’s case was 25 years before the U.S. Supreme Court began its piecemeal process of selecting certain provisions of the Bill of Rights and declaring them “fundamental” to liberty, “incorporated” into the Fourteenth Amendment and binding on the states. Freedom of speech was first, beginning in 1925 with Gitlow v. New York. Freedom of the press followed in 1931 with Near v. Minnesota. Trial-by-jury didn’t make the list until Duncan v. Louisiana in — are you ready? — 1968.
And it was 2010 when the Second Amendment right to keep and bear arms was declared “fundamental” to liberty, in the McDonald case.
“Fundamental” rights, as declared by a majority of the Supreme Court, cannot be infringed by a state law unless the state can show a “compelling” reason (more than just a “rational” reason) that the law is necessary, and narrowly tailored, to achieve a permissible purpose. This is a standard the courts call “strict scrutiny.”
It’s completely subjective. What is a “compelling” reason and what is a merely “rational” one? It depends on the personal values of the nine individuals who sit on the U.S. Supreme Court, or five of them.
President Donald Trump, endorsed early in 2016 by the National Rifle Association because, an NRA official said, the “Second Amendment is on the ballot this November,” has so far made two appointments to the high court.
That is not, in itself, a guarantee of how those justices will vote in a Second Amendment case.
But the city of New York will have to explain to the Supreme Court why it has a “compelling” reason to prevent residents from transporting their lawfully owned firearms to a shooting range outside the city’s boundaries.
In an early indication of how the case is likely to come out, some gun control groups would like New York City to change the rules now in the hope that the justices would consider the case moot and decide not to hear it. According to Jonathan Lowy, director of legal action at the Brady Center to Prevent Gun Violence, “there is a potential that this case will lead to a discussion by some justices, and perhaps by a majority, about whether the right to a firearm extends outside the home into public places.”
A ruling that establishes a constitutional right to carry a firearm outside the home could affect states that limit the issuance of permits to carry a concealed weapon. Currently, California is one of eight states that give local law enforcement agencies wide discretion on whether to issue a permit. Other states have “shall issue” laws, which require local officials to issue concealed-weapon permits to any applicant who meets the legal requirements. Some states are “right to carry,” requiring no permit.
A broad ruling by the Supreme Court, or future rulings in similar cases, could overturn any number of California gun laws.
Two pending cases stemming from voter approval of Proposition 63 in 2016 could be affected. In Duncan v. Becerra, five gun owners and the California Rifle & Pistol Association are suing over Prop. 63’s “un-grandfathering” of high-capacity magazines that were legally purchased before a 2000 law restricted their sale and manufacture. Rhode v. Becerra challenges Prop. 63’s provision that ammunition may be purchased only from state-licensed vendors in face-to-face transactions.
If those cases end up before the U.S. Supreme Court, California may have to show a “compelling” reason that those laws are “necessary” and “narrowly tailored” to achieve a “permissible purpose.”
And the state will have to convince five justices.
An argument can be made that the century-long process of selectively “incorporating” the Bill of Rights into the Fourteenth Amendment and applying it to the states in this manner is depriving the voters in each state of the sovereign power reserved to them by the Constitution, as stated very clearly in the Tenth Amendment.
But it’s too late now to do anything about it. As Justice Antonin Scalia told an audience at the American Enterprise Institute in Washington in 2006, “I’m not about to tell the people of New York state or of any state that their state government is not bound by the First Amendment.”
He certainly wouldn’t have told us they’re not bound by the Second.
Susan Shelley is an editorial writer and columnist for the Southern California News Group. Susan@SusanShelley.com. Twitter: @Susan_Shelley.
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