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Second amendment litigation continues, and 26 attorneys general take a peculiar position

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Can a municipality ban assault rifles and high capacity magazines without running afoul of the Second Amendment?  The Court of Appeals for the District of Columbia says yes. What about registration requirements for hand guns and rifles and a mandatory safety course?  Are they constitutional?  The U.S. District Court (a trial court) for the District of Columbia says they are, but the issue is on appeal. How about trigger locks and bans on hollow point ammunition? The Court of Appeals for the Ninth Circuit says they’re constitutional.[1]

Why so much litigation over gun laws? Simple. Municipalities and the National Rifle Association have strikingly different approaches to guns. Concerned about guns being used in crimes, as well as being the source of accidental deaths and injuries, municipalities enact gun control laws. The NRA views the Second Amendment as conferring unbridled gun rights and every gun control law, no matter how reasonable, as a threat. This is the backdrop behind gun law litigation.

Gun control laws have been part of America’s history almost from the start.  If you read Adam Winkler’s “Gunfight: The Battle over the Right to Bear Arms in America,” you will see that the Wild West wasn’t quite as wild as most assume it was—at least when it comes to guns.

In 2008, the U.S. Supreme Court decided in Heller v. District of Columbia that the District’s handgun ban violated the constitution. After the court rendered its decision, the District passed new laws that ban assault weapons and high capacity magazines and require the registration of handguns and rifles. Gun owners are also required to take a one hour safety course.

Mr. Heller and two other plaintiffs filed a second lawsuit, challenging the new laws, which the district court upheld as constitutional.  The appellate court affirmed the ban on assault weapons and high capacity magazines and upheld the basic registration requirement for handguns but sent the case back to the district court to more fully develop a record as to whether the registration requirement for rifles was constitutional.

The registration law requires gun owners to be photographed and finger printed, to submit to background checks, and to provide their place of employment and residence going back five years. It also requires gun owners to have the registration on their person when using a gun, to report a gun’s loss or theft and to notify the police of a name or address change.

The District of Columbia argued that registration helps screen out dangerous people and  keep track of who is responsible for which guns. The District has good reason to be concerned about gun violence. Its homicide rate is 14.62 per 100,000 residents; the national rate is 10.07.

Gun rights advocates usually oppose registration, and the NRA specifically points to federal registration as a prelude to confiscation , but federal statute and regulation prohibit the federal government from maintaining a registry. If federal law precludes a federal registry, why does the NRA argue about its dangers?  Good question.

Not surprisingly, plaintiffs also made the same argument the NRA always makes, that “Only the law-abiding register their guns,” which the court found to be “a curious argument that would render practically any gun laws unconstitutional.” For that matter, why have any laws at all if some people will break them? Findng that the registration laws were substantially related to the District’s interests in protecting police officers, reducing violence, and improving public safety, the court held the laws to be constitutional.

Plaintiffs objected to the firearm training and safety course on grounds it wouldn’t provide any benefit, but the court recognized that it is “commonsense … that training gun owners in firearms safety and regulations will likely reduce accidents.”  This provision, too, was found to be constitutional.

What’s next?  Plaintiffs are appealing.

The District of Columbia has not been alone in its efforts. The city of San Francisco requires handguns to be either stored in a safe or disabled with a trigger lock when not being carried by the owner. The law also bans the sale of hollow point ammunition, which is designed to expand or fragment upon contact. The district court found both provisions to be constitutional, and the appellate court affirmed.

San Francisco justified the trigger lock law as a means to reduce family gun violence and accidental gun deaths and injuries. According to the Children’s Defense Fund 2013 report, “A gun in the home makes the likelihood of homicide three times higher, suicide three to five times higher, and accidental death four times higher. For every time a gun in the home injures or kills in self-defense, there are 11 completed and attempted gun suicides, seven criminal assaults and homicides with a gun, and four unintentional shooting deaths or injuries.”

Based on evidence that trigger locks and safes can be unlocked in only a few seconds, the appellate court found that the law is not a substantial burden and held the law to be constitutional. The court also did not see the ban of hollow point ammunition as burdening the core right of keeping firearms for self-defense.

The common factor between the two laws is that neither prevents citizens from using handguns to defend themselves in their homes. Rather, the laws concern “the manner in which persons may exercise their Second Amendment rights.”

What’s next? The plaintiffs have asked the U.S. Supreme Court to hear the case, and attorneys general from 26 states have joined them in their request, which puts these states at odds with what San Francisco is trying to do to reduce gun violence—a peculiar situation, because AGs are not involved in the day-to-day business of dealing with gun violence.

It’s typically municipalities that have to deal with gun deaths on a daily basis, not the states. City police and county sheriffs are on the front line fighting crime, and city governments have to wrestle with how to reduce gun deaths. State troopers and the FBI are involved as well, but the mainstay of gun violence is handled at the local level.

Why is it that so many state AGs have taken a position that conflicts with San Francisco’s?  Why don’t the state AGs share the same perspective as local officials?

I can’t say with certainty, but politics likely enters the picture. Local government functions differently from state government. The lobbying and political pressures that exist at the state level don’t seem to exist at the local level, and the reach of the NRA and the far right do not extend to local government. These things likely make all the difference.

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Jack D’Aurora writes for considerthisbyjd.com

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[1] The court hears appeals from all federal district courts in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon and Washington.

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Discussion

  1. Chris  January 26, 2015

    This problem is only going to get worse until we implement some common sense gun laws, similar to what we have for cars, boats, motorcycles, and anything else that can badly injure someone.

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  2. Dan McCormick  January 26, 2015

    I’ve always been fascinated that the debate didn’t center on a key line “A well regulated militia..” which could go two ways. I (and my good friend Jack) could form a militia and set up rules/regulations to abide by, be properly trained, etc… At that point, we might be entitled to “bear arms” which could include RPGs, landmines, surface to air missiles. On the other hand, someone in favor of removing guns, could initiate the legislation to define a “militia” in their state or at the national level. Once defined, would my ability to own a gun be dependent on me being a “registered member of my militia”?

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    • jdaurora@behallaw.com  January 27, 2015

      When the Supreme Court decided the Heller case in 2008, the court held that the Second Amendment conferred a personal right and not a collective right concerning militias, which was a departure from how the Amendment had been viewed in the past.

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  3. John C. Calhoun  April 1, 2015

    Veni, vidi, vici. From Ceasar’s Commentaries. The “founding” fathers were schooled from when they first could read that tyrants like Ceasar and the one they just overthrew would use all the might of their governments to hold on to power by the sword (no rifle or pistol or other ordnance). They feared for their lives. That is why the second amendment is part of our constitution besides the rifle being a tool for their times. I have many times been issued weapons to take lives if needed and protect others. I was most recently the DoD’s SME on .50 Cal Machine Guns which became much more commonly used in Southwest Asia these last 20 years than it ever was in Vietnam. It is a weapon of war. No use in regular life. A big heavy thing. On the opposite end of the spectrum is a pistol. It’s only purpose in existence is to take lives. Do not let anyone tell you otherwise. 99.9999 percent of hunters do not use pistols to hunt with. Pistols should be done away with with the same vigor we control .50 Cal MG’s. Rifles and shotguns are where we should concentrate our efforts ALONG with new and always evolving methods or laws for keeping TYRANTS IN CHECK. A sort of political rather than constitutional continuous self improvement (KAN BAN). Sadly you cannot put the genie back in the bottle and this question will be with this nation as long as we are a “free society”. Most owners (the militia) will be law abiding but always wary of the TYRANT.

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