The Constitutionality of Gun Control

by Daniel Horwitz

While debating the merits of stricter gun control legislation in the wake of this month’s tragic massacre in Newtown (see: GunControl and the Second Amendment), it is essential to remember that there are actually two separate issues at hand that must each be considered before any new law is enacted. 

The first of these issues – and as you’ve properly pointed out, the only one that is currently being discussed – is what should be done to prevent mass shootings like those we’ve witnessed in places like Newtown, Oak Creek, Aurora and Virginia Tech from occurring again.  Though of critical importance (there havebeen 181 school shootings alone since Columbine), this is really no more than a simple public policy question: in sum, what laws, if any, should be enacted to protect the public from this kind of gun violence going forward? 

Several proposals have been offered up that could (potentially) further this goal.  On the first day of the new Congressional session, for example, Senator Dianne Feinstein plansto reintroduce the expired 1994 Federal Assault Weapons Ban— a bill which, among other things, would prohibit the manufacture for civilian use of certain semi-automatic firearms, and would outlaw the sale of what have become known as “high capacity magazines.”  Alternatively, Congress could succumb to pressure toclose the “gun show” loophole, or could require that all firearms be registered with the Federal government (a measure that PresidentLyndon Johnson unsuccessfully attempted to enact back in 1968).  In contrast to policies like these, however, organizations like the NRA and Libertarian Party (which have heavilycriticized the purported benefits of the above proposals) have instead suggested that armingschool officials would be the best way to protect students from future mass shootings— suggestions for which they have been criticizedmercilessly in turn.  And on the other side of this extreme, others still have called for strict and comprehensive Federal gun control legislation similar to the successfuland borderline prohibitionary regulatory regime currently employed in Japan. 

The second issue, however – and every bit as important, if not more so –  is what can be done.  By this I mean the precise consideration that you have raised: what we as a nation can do about gun violence that would be constitutionally permissible.  Constitutional governance is the essential foundation upon which our Republic is based, and the Constitution places structural limits on state and Federal governments that necessarily take certain policy choices off the table. 

Crucially, our commitment to Constitutional governance endures whether or not new legislation would be desirable from a public policy standpoint.  Though the vast majority of us would support laws, for example, that prevent Westboro Baptist Church from picketing the funerals of slain U.S. service members (or from harassing grieving Sandy Hook Elementary School parents as they lay their children to rest, as that church recentlyclaimed it would do), the Supreme Court has nonetheless held that theFirst Amendment flatly prohibits such legislation.  Similarly, many are distressed whenever a murderer is set free because police obtained evidence illegally in order to secure his conviction.  Even so, the Fourth Amendment’s exclusionary rule compels this result, and it will continue to do so unless it is repealed. 

Though the Constitution does not turn a completely blind eye to public policy considerations (it instead requires that laws infringing upon fundamental constitutional rights be “narrowly tailored to achieve a compelling governmental interest”), certain constitutional rights do trump the government’s interest in promoting public safety.  And despite the fact that the Supreme Court neglected to specify a standard of scrutiny when it decided the issue in 2008, it nonetheless made clear that “the right to bear arms” guaranteed by the Second Amendment is included among them.  Thus, even in the face of the incomprehensible pain caused by the Newtown shooting, and even though – as Justice Scalia recently observed – “the Second Amendment [may be] outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem[,]” the Second Amendment nonetheless forbids Congress from enacting a certain class of gun control measures— public safety be damned.  

Though this may sound extreme, it is really just another iteration of the classic tension between “liberty” and “security” that has existed in constitutional jurisprudence for centuries.   Like the First and Fourth Amendment examples above, then, unless the constitutionally-enumerated right to bear arms is lawfully repealed, “it is not the role of [the Supreme Court] to pronounce the Second Amendment extinct.”  Since nobody appears ready to launch a national campaign to repeal the Second Amendment, however (at least not yet), the essential question that remains is which precise policy choices the Second Amendment prevents Congress from pursuing. 

Because the Supreme Court’s modern Second Amendment doctrine is only four years old, the full scope of the Second Amendment’s guarantee is not yet entirely clear.  In the landmark 2008 case District of Columbia v. Heller, a divided Supreme Court held for the first time in history that the Second Amendment conferred an individual right to possess a firearm unconnected with service in a militia, as well as a right to use that firearm for traditionally lawful purposes like self-defense in the home.  Though the decision remains controversial for several reasons, the Heller Court’s holding that individual self-defense is “the central component” of the Second Amendment was subsequently applied to the nation as a whole in the 2010 case McDonald v. City of Chicago. 

While the purposes underlying the Second Amendment were not essential to these holdings (according to the Court, the right to bear arms exists whether or not the original reasons which prompted its enumeration remain persuasive today), the Heller Court did recognize three distinct reasons “why the militia was thought to be ‘necessary to the security of a free state’” when the Second Amendment was ratified.  First, Justice Scalia explained, “it is useful in repelling invasions and suppressing insurrections.”  Second, “it renders large standing armies unnecessary.”  Third, and along the lines of what you referred to as the “resistance army in waiting” interest, the Court noted that “when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.”  This final interest was discussed further in McDonald, where the Court explained in greater detail that the 14th Amendment (which was held to apply the Second Amendment to the states) was enacted in part to put an end to southern states’ “systematic efforts to disarm and injure African Americans” after the Civil War. 

Despite acknowledging that protecting citizens’ ability to resist tyranny was among the reasons why the right to bear arms was enumerated, the Supreme Court nonetheless made clear in Heller that this purpose does not define the scope of the right that the Second Amendment confers.  Thus, citizens are not entitled to the same military-grade weaponry that our service members enjoy, and as such, will never be able to claim entitlement to weapons like AK-47s, tanks or stealth-converted Blackhawk helicopters along the lines of those used to overtake Osama Bin Laden’s compound.  Though the Second Amendment may have been enacted in part – for purposes of tyrannical deterrence – to help citizens resist government, it does not give citizens the right to own the artillery necessary to overthrow it.  As explained below, however, citizens may indeed claim a constitutional entitlement to weapons commonly used for self-defense, but at least to this point, that’s about the full extent of what the Second Amendment protects. 

The practical effect of both Heller and McDonald has been that neither the Federal government nor state governments may prohibit law-abiding citizens from keeping handguns in their homes for personal protection, nor enact legislation rendering handguns unusable for that purpose.  This specific focus on handguns is not accidental, and the reasoning that underlies it is important.  Expounding upon the holding of the 1939 case United States v. Miller, the Supreme Court explained in Heller that while the Second Amendment does protect firearms that are “in common use,” it “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”  Thus, the Court reasoned, because “handguns are the most popular weapon chosen by Americans for self-defense in the home . . . a complete prohibition of their use is invalid.” 

Whether one favors the Second Amendment or not, it is difficult to justify this particular holding.  Which firearms are “in common use” is necessarily a function of which firearms are legal, and as such, the logic that underlies this premise is fatally circular.  As Justice Breyer exclaimed in dissent: “On the majority's reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.”  Whatever the merits of this holding, however, the Supreme Court is vested with final authority to divine constitutional meaning, and it represents what is currently the law of the land. 

In light of Heller and McDonald, then, what kinds of gun regulations are permissible today?  Blanket prohibitions on keeping handguns for self-defense in the home are clearly unconstitutional, and the Second Amendment probably confers a right to carry handguns for self-defense outside the home as well.  (Indeed, just three weeks ago, the Seventh Circuit Court of Appeals held that Heller and McDonald compelled such a result.)  That said, however, the post-Heller world has not turned out nearly as well as gun advocates had hoped.  By January 2, 2009, lower courts had issued rulings on all manner of gun control regulations, and accordingto UCLA law professor Adam Winkler, the scoreboard was “Gun Control 60, Individual Right 0.”  As of December 18, 2012, SupremeCourt correspondent Adam Liptak further explained that there had been “more than 500 challenges to gun laws and gun prosecutions since Heller was decided, and vanishingly few of them [] succeeded.”  Undoubtedly, these decisions have hinged upon the following crucial and expansive dicta from Heller itself:

“[N]othing 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 . . . [or] the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”

With the Constitutional path to stricter gun control legislation thus relatively (though not entirely) clear, the bulk of the debate can safely return to public policy.  Whether any of the proposed measures described in this essay’s introduction will in fact succeed in reducing gun violence, however, and whether their predicted public policy benefits outweigh competing concerns (such as the undesirability of restricting law-abiding citizens’ ability to own guns, making it difficult to hunt recreationally, inhibiting deterrence, or weakening citizens’ ability to resist a hypothetical tyrannical government) are questions for your Congressman.  That said, however, I’ll suggest one potential policy option that, despitesomewhat persuasive criticism, could be a good place to start: getguns out of the hands of people who don’t even want to own them, thereby taking thousands of high-powered weapons off the street without stepping on anybody else’s toes.  

 Daniel Horwitz is a third year law student at Vanderbilt University Law School, where he is the Vice President of Law Students for Social Justice. He can be contacted at Daniel.a.horwitz@vanderbilt.edu.

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