Gun Control After Heller: The Second Amendment Requires More Than Passing Rational Responses To An Irrational Act

260px-capitol_building_full_viewBelow is my column in the Hill Newspaper on the proposals for new gun control measures in the wake of the Las Vegas massacre.  As I discuss below, there are some obvious possible measures that could pass constitutional muster like banning bump stocks (which allow semi-automatic weapons to perform more like automatic weapons) and conversion kits.  However, these proposals would not have prevented the massacre.  There are many “work arounds” for semi-automatic weapons and Paddock would have likely passed any enhanced background checks.  Nevertheless, GOP members have expressed interest in some additional gun control  measures.  

Here is the column:

It is human nature to try to make sense out of even the most senseless acts of violence. That is certainly the case with the Las Vegas shooting spree. In the wake of the massacre, politicians rushed forward to give meaning to the tragedy, other than the raging madness of Stephen Paddock. Various reforms have been proposed, from new licensing laws to limiting the number of guns a person can own, to banning military-style weapons or silencers or high-capacity ammunition clips. There are some changes worth considering, but Congress will need to show they are more than simply sensible or rational. The strict scrutiny test customarily applied to an individual right demands more than blaming the gun or the gun lobby as opposed to the gun man.

In District of Columbia v. Heller, the Supreme Court in 2008 ruled the right to bear arms is an individual right. Two years later, in McDonald v. City of Chicago, the court ruled that this right applied against the states. Since then, courts have rejected efforts to limit aspects of gun ownership from barring concealed weapons to restricting ammunition. Last July, in Wrenn v. District of Columbia, the D.C. Circuit struck down a requirement that gun owners show “good reason” for a concealed carry permit as unconstitutional.

When legislating within a constitutional framework, Congress must meet a higher standard in the curtailment of an individual right, usually a showing of a narrowly tailored law advancing a compelling state interest. The Supreme Court stated in Heller, “If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.”

SuppressorsSome of the proposals seem still based on pre-Heller rational basis logic. For example, Hillary Clinton oddly responded to the attack with a tweets denouncing the NRA and raising the issue of silencers, which appear the only thing not found in Paddock’s arsenal of weapons, ammunition and explosives. After first telling people to “put politics aside,” Clinton denounced the gun lobby and observed that the “crowd fled at the sound of gunshots. Imagine the deaths if the shooter had a silencer, which the NRA wants to make easier to get.”

It is not hard to imagine the use of a silencer but it is hard to imagine a different outcome in Las Vegas. The gun may be silent, but the victims are not. While a person may not actually hear or recognize the gunshots, that person would certainly see dozens of people being hit and a crowd stampeding. It is ridiculous to think that Paddock could shoot a dozen people with a silencer, but people take little notice of the falling bodies or stampeding people around them.

Other proposals are constitutionally problematic like banning weapons like the AR-15 used by Paddock. Beyond its military look, the distinction between the AR-15 and hunting rifles can be difficult to discern. “AR” does not stand for either “assault rifle” or “automatic rifle.” It stands for Armalite, the company that manufactures the rifles. It is used in hunting as well as shooting competitions. It is popular because it is modular and allows for different grips and barrels. More importantly, it has a lower caliber than hunting rifles like the 30-06 Springfield. Those types of comparisons make weapons bans more difficult under a heightened or strict scrutiny standard.

However, timing can be everything. The Supreme Court currently has a petition pending in one of the few successful cases involving a ban on assault rifles. The case, Kolbe v. Hogan, involves Maryland’s 2013 ban on assault weapons and large-capacity ammunition magazines, which was upheld in a 10-4 decision by the Fourth Circuit in Richmond, Virginia. Twenty-one states have joined gun owners in asking the Supreme Court to reverse the Fourth Circuit and rule the ban as unconstitutional.

Cases like Kolbe could help define the outer limits of gun ownership after Heller. The Court recognized that the Second Amendment right is not absolute, any more than free speech or other rights in the Bill of Rights. One such limitation that predated Heller is the ban on that ownership of fully automatic weapons sold after 1986. Such machine guns are unlawful absent special licensing (though hundreds of thousands were “grandfathered” in by the law and can still be owned and sold in the United States). It is also illegal to convert a semi-automatic weapon into an automatic weapon.

download-3While limiting the number of guns is dubious under constitutional analysis, some background checks could pass constitutional muster. Challengers would likely point out that Paddock passed background conditions and would likely have satisfied any additional requirements. Nevertheless, polls show overwhelming support for background checks, including some showing support at over 90 percent. There are some loopholes or “workarounds” that could be addressed. For example, it remains legal to sell conversion kits to turn a semi-automatic into an automatic weapon.

Congress could easily close that loophole by limiting such kits to only approved and licensed owners. Congress could also address “bump stocks,” a device that Paddock reportedly used to allow at least one semi-automatic weapon to function like an automatic weapon. Since it does not actually convert the weapon, it is considered legal. Once again, however, even without a bump stock Paddock could have maintained nearly the same rate of fire with rapid trigger pulls for that critical nine minutes.

While Congress does not have to show that a new law would have changed the outcome in Las Vegas, it does have to show that limiting an individual right under the Bill of Rights is more than simply a rational response to an irrational act of violence.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

268 thoughts on “Gun Control After Heller: The Second Amendment Requires More Than Passing Rational Responses To An Irrational Act

  1. I agree with your post, however these crimes are committed by criminals that never obey any laws, new legislation will not bring less violence , it will actually increase it.
    Banning insignificant items brings insignificant results, all these politicians are just pandering for popularity, sensationalising a crime like this is ridiculous because less then 1% of violent crimes are committed with ar15 style rifles, and 100% by criminals.
    Many more crimes are comitted by criminalsome using pistols, not shotguns with less ammo capacity or any rate of fire.
    Please all reading this,,I ask you to read my articles on my website.,,I will clarify aspects most are un-aware of.
    Americanindependence2017preamble@wordpress.com

  2. CV Brown – might I suggest that you do not get into a “food fight” with either JT or Darren. The last person was banned for a year and I think some people have been permanently banned. I do know that JT used to scan the blogs and remove posts and for a while was sending reminders to specific people (me included) to place nice in the sandbox. Darren has full authority to remove posts, is my understanding.

    BTW, we all go off the beaten path on this blog, myself maybe more than most, so I cannot condemn Darren for his recipe. If I cooked, I would probably try it. You have to remember, for some of us, this is a community where we discuss things. We may not all agree on all things but we are still a community. We share things we like, books we are reading, films we have just seen, etc.

  3. ALSO, if you’re ambitious and capable of a learning curve- you can use the internet and find places like this:

    http://www.thehomegunsmith.com/

    The very existence of such places, as well as the fully prescient statement that ‘the poor will always be among you,’ render all laws of gun control useless, save for virtue signalling and good feelz until the illusion is shattered.

    But surely, this time the law against murder will work!

    • Rotation in office – no more than 10 years in any bloc of 12 in a given position – is a fine idea, as are high age thresholds to run for public office (39 years for supralocal positions and some local positions) and mandatory retirement (out at 76). Our political life is badly disfigured by crooks and cretins making a lifelong career of it, as well as people who fancy they’re indispensable (or need to be in office in order to avoid prosecution). No more Robert Byrds, Strom Thurmonds, Ted Kennedys, Bilge Clintons, Trent Lotts.

        • What the voter does is state his relative degree of aversion to prefabricated choices. It’s the least consequential element in the formation of a decision-making set.

          The function of rotation-in-office is to place screens on candidature. It works on the supply-side and influences the composition of the political class.

        • What of it?

          Hillary’s indicative of cultural decay among politicians and public alike. A generation ago, she’d have been regarded as too dirty to be considered for a marquee race most jurisdictions and her ugliness would have ruined her candidacy if she got past the donors and office-holders.

          • Thought you were discussing term limits..She served less than two terms so term limits would not have affected her. Ask Bob Corker the current president.

              • “No more Robert Byrds, Strom Thurmonds, Ted Kennedys, Bilge Clintons, Trent Lotts.” step What Clinton were you speaking of? I assumed it was her.

                • No, I was referring to her ‘husband’, who first ran for public office at the age of 28, who never practiced law, and who spent all of three years between completing his schooling and his retirement in some occupation other than electoral politics. (Since retirement, his occupation has been buckraking on a brobingnagian scale).

            • Your point is what? That there’s a politician from Tennessee whose avocation is lame insults?

              I’d be more impressed with Corker’s complaint if the Republican congressional caucus could manage something other than failure theatre.

              • DSS, Swarth is a new name to me on this blog. Is Swarth a previous character using a new name because the old name carries very little credibility?

            • Is this meant to be a response Swarth? Is this the type of comment that rules your mind? Obama was telling you not that long enough that we would have to learn how to live with less growth of our economy. That meant the standard of living of the generations to follow would decline. I assume you cheered. This President in less than one year helped bring growth to ~3% along with increased incomes and the highest number of people working. Is that meaningless to you? How about to your children or those that follow?

              These one comment quoted responses are vacuous and indicate that the person providing them is simply looking for something to quote rather than actually having an understanding of what is happening in the nation.

  4. Nothing has been done since the days of Jackboot Janet Von Flamethrower Reno ; the child immolater of Waco,TX. Back then it was a wire sring behind the trigger. Same deal. It will be used to eat away at the Second Amendment perhaps but the left will continue to block anything else in an agenda that shows they don’t really care who gets hurt. Including children as they have so often shown not to mention their kill ration of US Service personnel. Is 600,000 to 12,000 Progressive Regressive Socialists vs supporters of our Constitutional Republic acceptable? Really?.

    In the meantime here’s the latest to look forward to from Justia notifications@justia.info

    US Supreme Court
    The Court heard oral arguments in the following cases this week:
    Sessions v. Dimaya
    Epic Systems Corp. v. Lewis
    Jennings v. Rodriguez
    Gill v. Whitford
    District of Columbia v. Wesby
    Class v. United States

    Read more about them and listen to the oral arguments on Oyez.

  5. 35,000 U.S. highway deaths in 2016.

    Repeal the “Freeway Amendment.”

    Automakers are to blame.

    Repeal the automobile.

  6. The greatest potential threats to American citizens’ Freedom & Liberty reside in the U.S. Congress, the Presidency and the Vice-Presidency. No other entities, either foreign or domestic, compare.

    This is why whenever I read or hear from individuals that they want to assign any more power to these politicians it makes me angry. Politicians are the last people you want to give unchecked authority or power, especially the miscreants we have in Congress. They historically abuse what they have. Why grant them more?

    With approval ratings consistently around 12% for the past several years, why is it that there aren’t tar and feather stations being set up by the public around the District of Columbia? It is because we’ve allowed ourselves to believe “our” politician will give us the goodies we crave and protect us from the evils of the opposition. The parties recognized long ago that as long as there is a roughly equal ratio of sycophants to reactionaries among the population, when one side is temporarily out of office the status quo opposition can take over. But, not to worry among the powers to be because this will reverse itself eventually. A third-party candidate is a direct threat to this détente because both sides then become replaceable and are equally threatened in their minds.

    I firmly believe the best course of action we as voters can provide our nation is to throw out every current incumbent in Congress and start over with highly capable individuals who have a sense of Honor and are incorruptible. Their election must also be contingent on campaign mandates to amend the Constitution to enforce term limits of only two terms for life and over turn Citizen’s United. (and perhaps raise representatives’ term to four years). That would drain the swamp more effectively than anything.

    • Darren, can Citizen’s United be overturned without a Constitutional Amendment? I presume that your term limits proposal necessitates a Constitutional Amendment.

    • Darren – Arizona is in the process of replacing one of its Swamp Creature. Little Jeffie Flake is up for re-election and his numbers are in the basement, he is having trouble raising money and Dr. Kelli Ward is polling 25 points ahead of him in the primary. Every time he puts an ad on FB the negative comments far outway the positives. If U were Little Jeffie, I would not plan on being a two-term Senator, I would update my resume.

    • Whether one agrees or not I think Trump was voted in based on Darren’s idea. We have seen the reaction of the entrenched politicians on both sides which serve as a warning that they will not permit their power to wane.

    • Freedom and liberty begin with property and wealth and the right to posses the fruits of one’s labors. Enforcement of the Constitution by the SCOTUS would “drain the swamp” most effectively. Redistribution of wealth, including redistributed jobs and matriculation by affirmative action, is precluded by Article 1, Section 8, which allows Congress to tax ONLY for General Welfare not Individual Welfare, and by the right to private property which is held “…in the exclusion of every other individual…” according to Madison.
      _______________________

      James Madison On Private Property –

      “…that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”
      _______________________

      All forms of redistribution of wealth and social engineering are unconstitutional and should have been declared such by the SCOTUS long ago precluding laws and programs which include affirmative action, quotas, welfare, food stamps, social services, forced busing, utility subsidies, WIC, HHS, HUD, HAMP, HARP, Education Dept., Labor Dept., Obamacare, Obamaphones, Social Security, Medicare, Medicaid, and
      every other form of redistribution of wealth and social engineering.

      The free market charity industry has been unconstitutionally nationalized and imposed on American taxpayers.

      The Constitution did not establish a redistributionist welfare state in 1789 and one should not exist now.

    • The greatest potential threats to American citizens’ Freedom & Liberty reside in the U.S. Congress, the Presidency and the Vice-Presidency. No other entities, either foreign or domestic, compare.

      The Vice Presidency is a 5th wheel office which should be abolished. It isn’t a threat to anyone. It just hoovers up a large part of the Secret Service budget to no good end.

      I doubt the disposition of legislators is worse than other public officials, or the disposition of the President. Lois Lerner was a denizen of the permanent government, as was J. Edgar Hoover (albeit a discretionary appointee). The legal profession and the educational apparat are much more inclined to be abusive to dissenters than working politicians, IMO. Judges and prosecutors have a great deal of discretion, much of it they do not merit.

  7. All gun control is unconstitutional. All laws infringing on “…the right of the people to keep and bear arms,…” must be declared void by the Supreme Court. Even Supreme Court Justices have the capacity to comprehend the “manifest tenor” of the 2nd Amendment. Those Supreme Court Justices know it is theirs “…whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”

    Alexander Hamilton –

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    2nd Amendment –

    “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.”

      • Isn’t the bigger question. Does the government have the right to own one? Yes. Bombs were around in 1776 and George Washington was fine with it.

      • An “A-bomb” is a weapon of mass destruction (WMD) not an “arm” that can be kept and borne by an American citizen.

        You’re a genius!

        • George – the SC disagrees, but I think there is an argument to be made that anything the military has, the militia should have. If you can afford a B-1 bomber you can have a B-1 bomber. If you can afford an aircraft carrier, you can have an aircraft carrier. If you have a nut-case like Kim Jong-Un, you need nukes, not pistols at 30 paces.

          • PCS, let’s keep it simple.

            The Supreme Court has no credibility, produces no unconvoluted and objective decisions that support the “manifest tenor” of the Constitution and is a corrupt arm of the liberal democrat party. SCOTUS approved Obamacare which will never be constitutional as it clearly violates the “commerce clause” and Article 1, Section 8 which states that “…Congress shall have Power To lay and collect Taxes,…to…provide for the…general Welfare of the United States;…”, omitting and excluding individual welfare – Obamacare is not general welfare but redistribution of wealth.

            You cannot keep and bear a tank in your garage (i.e. civic ordinances would preclude operation on a roadway) or an aircraft carrier in your bathtub.

            WMD cannot be “kept” or “borne” by the individual citizens who are addressed by the Bill of Rights and would represent an unacceptable hazard to other citizens per civic codes while they were in the process of being “kept” and “borne” while small or light weaponry can be and is stored with complete safety.

            A “militia” by definition is differentiated from a standing army of a national military. That the Supreme Court or you “…think there is an argument to be made that anything the military has, the militia should have…” does not make it a fact. O.J. Simpson’s attorneys made an argument that O.J. didn’t slice and dice two innocent people.

            As a pragmatic consideration, all military battles are concluded by individual infantry soldiers. Americans would be able to provide effective opposition to a “tyrannical and oppressive” government with high numbers of like-minded citizens and small or light infantry weapons which they may “keep and bear” in their homes. The military discovered the inefficiency of fully automatic “assault rifles” and reduced them to three-round bursts.

            To say that because Americans cannot keep and bear ANY arms because that list of “arms” should include “A-bombs” and Anthrax is an egregious, disingenuous deflection as a “red-herring.” Absurdity and “exceptions to the rule” are arguments FOR the 2nd Amendment.

  8. Did you ever notice that in Israel almost all the young are walking around with guns and Uzi’s on their possesion? Did you notice how they don’t kill each other like the youth in Chicago?

    • Have you seen proof that 500+ people were wounded & 59 killed. Pools of blood? Wheredy go?

      LV was a false flag operation. It wasn’t sponsored by the PLO.

      • “LV was a false flag operation.”

        A bit of a loonie statement. I’ll make sure I’m not down below at a concert when you are above on the 32nd floor.

        • Allan – you are safe with me. I stayed on the 1st floor of the Luxor and faced the Luxor Towers. The only thing I could shoot was water and steam pipes. 🙂

    • Israel has chronic security problems almost no other occidental country has. It also has a global budget and price controls in the medical sector, which cannot be effected without R..A..T..I..O..N..I..N..G.

      betsyDvos doesn’t care for Israel. Israel’s a decent place to live. Progs admire only lousy places, like Cuba.

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