What Does the Constitution Say About Gun Control? Part 1

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Mar 6, 2018

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Guns, AmericaIn the wake of the recent gun massacre at Marjory Stoneman Douglas High School in Parkland, Florida, the most vocal proponents of gun control have been students. If adults won’t do anything about gun violence, they argue, it is time for children to teach adults that young lives are more important than the unfettered access to assault rifles that the gun lobby supports.

Extremists known for spreading conspiracy theories responded by attacking the kids, linking their concern about the murder of their classmates to an imagined plot, fomented by the FBI, to eviscerate the Second Amendment. A Florida Republican legislator’s aide was fired after he spread false claims that two students who advocated for stricter gun control laws were actually “crisis actors,” not students.

No evidence supports the notion that the students, including those whose friends were shot to death, are anything other than what they appear to be: concerned citizens who are fed up with gun violence. But their calls for gun control raise a thorny legal issue. To what extent can the government ban or regulate gun ownership in light of the Second Amendment?

Politics and Guns

Calls for gun control have fallen on a deaf legislative ear in recent decades, in part because the National Rifle Association (NRA) has the financial might to be an effective lobbyist against legislation that has any impact on gun ownership. In some places, losing the support of the NRA can mean losing an election.

The Parkland students are trying to change that dynamic. Their united voices have helped persuade a number of businesses that had “partnered” with the NRA to end their relationship. Hertz and Avis, for example, joined MetLife and Best Western in deciding to stop giving discounts to NRA members.

It might make good business sense for businesses to disassociate themselves from gun violence, but they may pay a political price for those decisions. Republican lawmakers in Georgia killed a tax break for Delta Air Lines because it took away an NRA discount that its customers rarely used. Whether a state legislature can punish a business unless it offers discounts to members of a favored lobbying group (and a significant source of campaign contributions) is a question that the courts might eventually be asked to decide. An argument could be made that Georgia violated Delta’s right to free speech by sanctioning a political viewpoint that it disfavored.

Gun control opponents argue that the remedy for gun violence is increased gun ownership, a position that was echoed in President Trump’s unpopular suggestion that teachers (or at least those who are “gun adept”) should be armed. That proposal lost steam after a Georgia teacher was charged with a number of crimes after firing a gun inside a school, although Florida legislators recently voted to arm teachers after rejecting an assault weapon ban.

Gun control proponents argue that arming more people will only lead to increased gun violence. Whether the opposing viewpoints lend themselves to a political solution to gun violence is unclear, although students from Parkland and other schools are certainly making their voices heard.

The Second Amendment

After a mass shooting in Tasmania, Australian states banned ownership of assault rifles, imposed a 28-day waiting period to buy a gun, instituted thorough background checks, and required individuals to have a legitimate reason for owning a gun. There has not been a mass shooting in Australia since those regulations were enacted.

The NRA opposes similar regulations in the United States and would be apoplectic if Congress insisted that gun owners demonstrate the need for a gun before buying one. Before Congress could address the political questions posed by regulations similar to those in Australia, it would need to determine whether gun regulation is constitutional.

The Second Amendment states: “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.” For much of the nation’s history, courts viewed that single sentence as stating an integrated thought: people have the right to keep and bear arms for the purpose of serving in a well-regulated state militia (e.g., the National Guard). Some legal scholars, however, argued that the Framers of the Bill of Rights intended to create a right of private gun ownership.

A narrow majority of the Supreme Court now reads the Second Amendment as containing two clauses that grant separate rights: the right of states to maintain a militia, and the right of individuals to keep and bear arms. That interpretation may have some historical support, but it is not a natural reading of the text.

It is rare to hear an argument that the Second Amendment should be interpreted to permit private ownership of all arms, including rocket launchers and nuclear weapons. If some regulation of the right to bear arms is permitted, the question is how much regulation the Second Amendment allows.

The Supreme Court decided cases in 2008 and 2010 by 5-4 majorities that established the right of private ownership of firearms on one’s own premises for self-protection. That limited right also left room for considerable regulation. One legal commentator summarizes the areas that can be regulated as:

  • A prohibition against ownership of “dangerous and unusual weapons,” although the parameters of which arms are unusual or dangerous is unclear
  • A prohibition against gun ownership by felons and the mentally ill
  • A prohibition against carrying a concealed weapon
  • A prohibition against carrying guns into schools, government buildings, and other “sensitive places”
  • Regulation of the commercial sale of arms

The current legislative debate about gun control, at both the federal and state levels, will probably focus on those areas of permitted regulation. Part 2 of this article addresses specific regulations that might be challenged as violations of the Second Amendment.

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