Second Amendment

  • June 15, 2015
    Guest Post

    by Eric Ruben, Jurisprudence Fellow, The Brennan Center for Justice at New York University School of Law

    Tomorrow, an en banc panel of the Ninth Circuit will rehear oral arguments in Peruta v. County of San Diego, a case that spawned an originalist opinion last year that would have drastically increased the number of people publicly carrying handguns in California and Hawaii.

    California, Hawaii, and seven states outside the Ninth Circuit have “may issue” laws and policies requiring applicants to show a heightened need for self-defense — something beyond a generalizable fear of being attacked — before they can receive a permit to carry concealed handguns in public. The plaintiffs in Peruta wanted to carry handguns, could not satisfy this requirement, and sued in federal court alleging a violation of their Second Amendment rights.

    Peruta represents one of the most significant Second Amendment cases since 2008, when the Supreme Court decided District of Columbia v. Heller. In Heller, the Supreme Court held for the first time in over 200 years that the Second Amendment protects an individual right to possess a handgun inside the home for self-defense. In 1791, when the Second Amendment was adopted, modern semi-automatic firearms didn’t exist and elected officials weren’t struggling to find solutions to a massive gun crime problem. But Heller expressly rejected an analysis that took into consideration the government’s interest in dealing with a deadly modern-day problem. Rather, the Heller majority, in an opinion by Justice Scalia, relied almost exclusively on an historical analysis for its conclusion, asserting that “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them.” The history considered in Heller, however, arguably does not dictate Heller’s holding. Liberal and conservative commentators alike have criticized Heller’s originalism for providing a misleading historical cloak for an activist judicial ruling.

    Heller left unresolved many obvious issues, such as the scope of the right to bear arms outside the home and how lower courts should decide Second Amendment challenges — through a purely originalist analysis or by applying means-ends scrutiny that would take into consideration the government’s interest in preventing violent crime, death, and injuries. Those issues have been considered by lower courts in the hundreds of legal challenges to firearm regulations since Heller, and they are at the heart of Peruta.

    The Second, Third, and Fourth Circuits have held that “may issue” laws like California’s in New York, New Jersey, and Maryland are constitutional. Those courts, and the majority of lower courts considering Second Amendment challenges since Heller, have refrained from grounding their decisions in originalism. The rejection of originalism as the sole basis for decision making is likely a reflection of the fact that (as in Heller) the history is often disputed and busy judges are neither trained nor equipped to answer nuanced historical questions on the basis of necessarily limited records. When the Second Circuit considered New York’s “may issue” statute in 2012, it found the history “highly ambiguous” and upheld the law under intermediate scrutiny, concluding that the law was substantially related to the achievement of an important government interest — public safety and crime prevention. The Third and Fourth Circuits employed similar analyses to uphold New Jersey’s and Maryland’s “may issue” laws in 2013.

  • December 3, 2014

    by Christopher Durocher.

    Six years ago, in Heller v. District of Columbia, a divided Supreme Court held for the first time that the Second Amendment to the U.S. Constitution protects an individual right to bear arms. This decision called into question the viability of gun-safety regulations across the country, including in high-crime urban areas in which the need to address gun violence is particularly acute.  Just this past July, a federal district court judge in DC concluded, “In light of Heller [and its] progeny, there is no longer any basis on which this Court can conclude that the District of Columbia’s total ban on the public carrying of ready-to-use handguns outside the home is constitutional under any level of scrutiny.” It’s not so clear, however, that Supreme Court precedent or the Second Amendment, itself, require the rejection of this and other gun-safety regulations.

    In the ACS Issue Brief “The Constitutional Case for Limiting Public Carry,” Professor Lawrence Rosenthal of Chapman University Fowler School of Law examines the Second Amendment’s historical context and concludes that, even accepting an originalist reading that the Constitution protects an individual’s right to bear arms, the drafters of the Second Amendment anticipated the need for and value of gun-safety regulations. Far from proscribing regulation of firearms, the drafters understood that regulation was appropriate, including the types of restrictions on open and concealed public carry that cities throughout the United States have adopted.

  • July 28, 2014

    by Ellery Weil

    The New York Times is calling for the federal government to repeal laws banning marijuana, saying that as a substance it is less dangerous than alcohol, and the social costs of keeping it illegal are too vast to justify its current legal status. “The social costs of the marijuana laws are vast. There were 658,000 arrests for marijuana possession in 2012, according to the FBI figures, compared with 256,000 for cocaine, heroin and their derivatives. Even worse, the result is racist, falling disproportionately on young black men, ruining their lives and creating new generations of career criminals.”

    Prachi Gupta in a piece for Salon explores the recent federal judge’s ruling that D.C.’s public handgun ban is unconstitutional.

    NPR’s Rebecca Buckwalter-Poza discusses Alabama’s high rate of death penalty sentences, especially in light of recent debate surrounding capital punishment. On MSNBC’s “Melissa Harris-Perry,” ACS Vice President of Network Advancement Sarah Knight discussed the recent Arizona death penalty debacle, where it took the state almost two hours to execute a condemned death row inmate. 

    Sarah Kliff at Vox reports on pro-choice legislators using the Supreme Court buffer zone ruling as a guideline for new, safer abortion clinics which can be protected as effectively as possible. On the same “Melissa Harris-Perry” show, ACS’s Sarah Knight joined a discussion about the Supreme Court’s opinion earlier this summer invalidating Massachusetts’ abortion clinic buffer zone law.

  • September 30, 2013

    by Jeremy Leaming

    Earlier this year, a little more than a month after mass shootings at a Connecticut elementary school, President Obama discussed the challenges of trying to implement gun safety measures and announced more than 20 executive orders, including an order for the Centers for Disease Control to study ways to reduce gun violence. The president’s call for Congress to take action and approve modest new measures flopped … in the Senate. And even if senators had approved new measures promoting gun safety it is hard to believe they would have been considered in the House of Representatives, where Republicans are bent on protecting the financial industry and defunding of the Affordable Care Act.  

    But executive orders alone are hardly going to reframe the debate let alone significantly curtail gun violence. Yet another study shows how obstinate refusal to even basic reforms of gun regulation is needlessly taking innocent lives yearly.

    In an extensive piece forThe New York Times, Michael Luo and Mike McIntire reveal that accidental deaths of children because of guns are far higher than government statistics show, primarily because of the success of the gun lobby in defeating all kinds of efforts, including research to promote gun safety. The Times reported that a “review of hundreds of child firearm deaths found that accidental shootings occurred roughly twice as often as the records indicate, because of idiosyncrasies in how such deaths are classified by authorities. As a result, scores of accidental killings are not reflected in official statistics that have framed the debate over how to protect children from guns.”

    That debate has largely been controlled by gun enthusiasts and their lobbyists, who frequently blast any regulation as an encroachment on Second Amendment rights to keep and bear arms. For, example, The Times noted that the National Rifle Association cited the inaccurate numbers of accidental child firearm deaths in its campaign to scuttle laws requiring the safe storage of guns. State lawmakers ape the NRA’s talking points, often arguing that safe-storage laws would undermine adults’ efforts to protect themselves from intruders.

    Moreover the newspaper noted that the gun lobby has remained successful at making sure firearms remain exempt from “regulation by the Consumer Product Safety Commission.” As one expert lamented, “We know in the world of injury controls that designing safer products is often the most efficient way to reduce tragedies. Why, if we have childproof aspirin bottles, don’t we have childproof guns?”

    The U.S. Supreme Court, led by Justice Antonin Scalia, ruled in 2008 in D.C. v. Heller that the Second Amendment protects an individual right to bear arms. That ruling greatly enhanced the gun lobby’s cudgel against any consideration of new gun safety measures, such as ones intended to encourage parents to keep firearms stored safely.

  • February 5, 2013
    Guest Post

    by Adam Winkler, professor of law at UCLA School of Law and author of Gunfight: The Battle over the Right to Bear Arms in America

    As Congress considers proposed reforms to the nation’s gun laws, opponents of reform have appropriately drawn attention to the Second Amendment. The Second Amendment protects the rights of individuals to have guns and lawmakers have an obligation to consider whether any law they pass is consistent with constitutional law. No member of Congress should vote for a bill that violates the Second Amendment.

    Where opponents have gone wrong is in constitutional analysis. They claim the Second Amendment would be infringed by the proposed reforms, which include universal background checks, limits on high-capacity magazines, and restrictions on assault weapons.

    Yet none of these laws are likely to be overturned by the Supreme Court as violation of the Second Amendment. That is the view expressed by over 50 distinguished constitutional law professors in this Statement of Professors of Constitutional Law: The Second Amendment and the Constitutionality of the Proposed Gun Violence Prevention Legislation. The signatories include Laurence Tribe, Richard Epstein, Eric Posner, Reva Siegel, Geoffrey Stone, Charles Fried, Walter Dellinger, Dawn Johnsen, Larry Lessig. I was one of a number of Second Amendment specialists who signed, including Sandy Levinson, Mark Tushnet, Joseph Blocher, Jamal Greene, Michael Dorf, Carlton Larson, and Lawrence Rosenthal.