Current Constitutional Standards Post-Heller for Gun Control Under 2nd Amendment

By Jim Maisano

With the ongoing debate about gun control legislation in Congress and New York State, it is important to take a closer look at the two recent U.S. Supreme Court decisions interpreting the 2nd Amendment, so that we can establish whether the legislation would be constitutional. This post is not seeking a debate on individual viewpoints on gun control. I only endeavor to remind all sides of this debate that the two recent U.S. Supreme Court decisions interpreting the 2nd Amendment are historically important, and no legislative body should pass any gun control laws prior to ensuring they will pass constitutional muster.

Let’s first be reminded of the text of the 2nd Amendment to the Constitution:  "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

The first landmark case updating 2nd Amendment law was District of Columbia v. Heller, 554 U.S. 570 (2008).  The plaintiffs challenged the DC City Council’s "Firearms Control Regulations Act of 1975," which banned handgun possession by making it a crime to carry an unregistered firearm and prohibited the registration of handguns. No resident could own a handgun or automatic or semi-automatic weapon, except for police officers and guns registered before 1976. The law also required that guns be kept inside the home and "unloaded, disassembled, or bound by a trigger lock or similar device," which made it difficult for home protection. Here is a summary of Justice Scalia’s holding in Heller (5-4 decision):

1.  The 2nd Amendment protects the individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home.

2.  Like most rights, the 2nd Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Prior court holdings show that the sorts of weapons protected are those “in common use at the time,” which finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

3.  The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the 2nd Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D.C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising 2nd Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.

The Court relied on the "in common use at the time" language from U.S. v. Miller, 307 U.S. 174 (1939) which stated:

"The significance attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

It is important to note that Heller made clear the 2nd Amendment was not absolute and some gun control legislation is "presumptively lawful," including laws that prohibit carrying concealed weapons, gun possession by felons or the mentally ill, carrying firearms in sensitive places such as schools and government buildings, and “dangerous and unusual weapons,” as well as laws that impose “conditions and qualifications on the commercial sale of arms,” and regulate firearm storage to prevent accidents.

The question remained after Heller whether it extended beyond federal legislation, and it was answered in McDonald v. Chicago, 561 U.S. 3025 (2010), which posed a challenge to a Chicago ordinance that essentially banned private handgun ownership. McDonald held that the 2nd Amendment was binding on states and that the right of an individual to "keep and bear arms" protected by the 2nd Amendment is incorporated by the Due Process Clause of the 14th Amendment.

So here is the key question:  besides the legislative restrictions that Heller approves as not violating the 2nd Amendment, which other restrictions would be constitutional?

Let’s turn to the recently passed NY SAFE Act (from Gov. Cuomo’s website) for a review of its restrictions:

• Bans possession of any high-capacity magazines regardless of when they were made or sold. The maximum capacity for a detachable magazine is reduced from ten rounds to seven. Magazines owned before passage of the SAFE Act able to hold seven to ten rounds can be possessed, but cannot be loaded with more than seven rounds. .22 caliber tubular magazines are exempt from this limit. Previously legal "pre-1994-ban" magazines with a capacity of 30 rounds are not exempt, and must be sold within one year to an out-of-state resident or turned into local authorities. The magazine limit takes effect April 15, 2013.
  
• Ammunition dealers are required to do background checks, similar to those for gun buyers. Dealers are required to report all sales, including amounts, to the state. Internet sales of ammunition are allowed, but the ammunition will have to be shipped to a licensed dealer in New York state for pickup. Ammunition background checks will begin January 15, 2014.
  
• Requires creation of a registry of assault weapons. Those New Yorkers who already own such weapons would be required to register their guns with the state.
• Requires any therapist who believes a mental health patient made a credible threat of harming others to report the threat to a mental health director, who would then have to report serious threats to the state Department of Criminal Justice Services. A patient’s gun could be taken from him or her.
• Stolen guns are required be reported within 24 hours. Failure to report can result in a misdemeanor.
• Reduces definition of "assault weapon" from two identified features to one. The sale and/or transfer of newly defined assault weapons is banned within the state, although sales out of state are permitted. Possession of the newly-defined assault weapons is allowed only if they were possessed at the time that the law was passed, and must be registered with the state within one year.
• Requires background checks for all gun sales, including by private sellers – except for sales to members of the seller’s immediate family. Private sale background checks will begin March 15, 2013.
  
• Guns must be "safely stored" from any household member who has been convicted of a felony or domestic violence crime, has been involuntarily committed, or is currently under an order of protection. Unsafe storage of assault weapons is a misdemeanor.
• Bans the Internet sale of assault weapons.
• Increases sentences for gun crimes, including upgrading the offense for taking a gun on school property from a misdemeanor to a felony.
  
• Increases penalties for shooting first responders to life in prison without parole.
• Limits the state records law to protect handgun owners from being identified publicly.
• Requires pistol permit holders or owners of registered assault weapons to have them renewed at least every five years.

While several of the NY SAFE Act restrictions are similar to ones cited in Heller as acceptable, two do present possible constitutional problems:  the ban on assault weapons and ban of high capacity magazines.  Since these restrictions impact guns and magazines "in common use at the time," they could run into problems under Heller’s reliance on Miller.

There is a serious issue with legislation directed at banning assault weapons because terms like "assault weapons" or "military-style assault weapons" are not defining an objectively agreed upon group of weapons.  There is tremendous debate on exactly which guns fall into this classification.  For example, the federal bill proposed by Senator Feinstein allegedly bans 157 specific guns and exempts 2,248 guns she claims are commonly used for hunting and sports shooting, although many of the 157 guns to be banned are in common use at this time and are semi-automatic guns, which many experts believe are not "assault weapons."  (As a Marine Corps veteran with assault weapon experience, I do not believe that semi-automatic guns should be labeled as assault weapons).  There is widespread agreement that automatic guns are properly labeled as assault weapons (and I agree).  It appears the NY SAFE Act does not provide the requisite detail in its ban on assault weapons, making this component legally suspect.  However, Heller does state that restrictions on "dangerous and unusual weapons” would pass constitutional muster.  I suggest that those drafting legislation banning assault weapons better demonstrate that the guns being banned are truly "dangerous or unusual" and not simply guns "in common use at the time," since Heller indicates that restrictions on the 2nd Amendment must pass some level of heightened scrutiny under either strict scrutiny or intermediate review.  This requires proof that the legislation is genuinely seeking to achieve reasonable and important societal goals, while minimizing unnecessary impacts on lawful gun owners.

The Congress is currently considering bans on both assault weapons and high capacity magazines, and since I believe these restrictions raise red flags under the 2nd Amendment post Heller, if such legislation is passed, it would need to be narrowly tailored to avoid vagueness and overbreadth.  The NY SAFE Act has already been challenged in court and you can expect any law passed by Congress to be challenged based on the landmark Heller case. We should expect the U.S. Supreme Court to revisit the 2nd Amendment in the coming years.

James Maisano, Esq. is a practicing attorney who also serves on the Westchester Board of Legislators. Check out Jim’s website at www.JamesMaisanoEsq.com, and you can also find this post on his Legal Blog (please see disclaimer on the Legal Blog). Jim’s law office can be contacted at Jim@JamesMaisanoEsq.com or (914) 636-1621