Below is my column on various proposal for gun control reforms after the latest school massacre in Florida. As the column discusses, the constitutional burden is more demanding than suggested by many politicians. This is clearly a right that is subject to reasonable limitations but it is an individual constitutional right that affords gun owners a higher protection in the court.
The calls for gun controls after the Florida massacre have caused unprecedented political shifts — and defiance of the powerful National Rifle Association. Florida’s conservative governor, Rick Scott, signed the “Marjory Stoneman Douglas High School Safety Act,” which imposes an age limit and three-day waiting period on gun purchases.
The NRA has now sued to challenge that law while, in Oregon, a 20-year-old man is suing Dick’s Sporting Goods and Walmart for unilaterally imposing the same age restrictions. The individual right to bear arms remains a work in progress constitutionally and these cases could answer lingering questions over how far this right can be abridged through legislative or regulatory changes.
In 2008, the U.S. Supreme Court ruled in District of Columbia v. Heller that the Second Amendment guarantees the “individual right to possess and carry” firearms and “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” The decision put gun ownership on the same constitutional plain as free speech, religious freedom and other core rights.
Before Heller, a showing of a “rational basis” was viewed as sufficient to impose conditions on gun owners or to bar particular guns or accessories. After Heller, courts have applied higher standards. Core constitutional rights are often protected under the highest standard of strict scrutiny, requiring a state to show a compelling, narrowly tailored interest. It is a difficult standard to satisfy by design. Some courts, however, have imposed an intermediate standard, requiring that the change be substantially related to an important governmental interest.
While the public overwhelmingly favors new gun controls, it may be in for a rude awakening as courts test the likelihood that the most common proposals will reduce shootings. The Second Amendment right is clearly not absolute (any more than First Amendment rights) and the Supreme Court has already indicated that it is open to reasonable limitations. However, what passes for a rationale in the court of public opinion will not necessarily suffice in a court of law. Here are the most common proposals, starting from those with the best chances of passing constitutional muster.
Banning bump stocks
Bump stocks allow a semi-automatic weapon to function like an automatic weapon without actually converting it. Stephen Paddock used bump stocks in the Las Vegas massacre, allowing him to hold down the trigger in discharging his weapons. This one is likely to pass muster, though it is by no means as easy as some suggest.
While this is hardly popular (or, for politicians, convenient) to say, it is highly doubtful a bump-stock ban will reduce the risk of school shootings. Critics insist you can achieve basically the same rate of fire with rapid trigger pulls, trigger cranks or even low-tech options like rubber bands. (Nikolas Cruz in Florida fired 150 rounds in just seven minutes without an automatic weapon or bump stock.) Nevertheless, a court is likely to find a ban on the devices sufficiently tied to the compelling interest of the government, and the NRA is not opposing it.
Notably, the greatest vulnerability may not be the ban but the means of it. The NRA and the Trump administration want to make this change through agency action, not legislation. However, in 2010, the Bureau of Alcohol, Tobacco, Firearms and Explosives correctly concluded it does not have authority to ban bump stocks because they are an accessory, not a firearm. Neither the Gun Control Act nor the National Firearms Act gives the bureau powers over such devices and, for those of us leery of federal agencies legislating like a fourth branch, any ban should come from Congress.
Banning large magazines
A ban on large magazines is also likely to pass constitutional muster, since it does not prevent gun ownership or impose more than a slight inconvenience on shooting enthusiasts. However, the impact of requiring lower capacity magazines is highly uncertain. Tens of millions of such magazines are on the market and can be created by gun owners. More importantly, an experienced shooter is generally adept at swapping out magazines in a couple of seconds. The ban is unlikely to mean fewer shootings or even fatalities.
In Florida, Cruz had six magazines holding 30 rounds each, and he fired 150 times. That suggests he swapped out magazines five times. A semi-automatic AR-15 can easily maintain a rate of fire of 2.7 rounds per second. Even if you cut that rate by over half, to one round per second, this would allow for 420 rounds. Cruz could have swapped twice the number of magazines and maintained roughly the same level of rounds. Nevertheless, magazine capacity has a direct relationship to the compelling state interest and would likely be upheld.
Banning the AR-15
Banning ownership of a class or type of firearm drives directly at the heart of Heller and would face a more difficult challenge. Much of the debate over the ban is ill-informed. “AR” does not stand for “assault rifle,” which is an automatic weapon. Rather, the name AR-15 comes from the “Armalite rifle” that was offered in the 1950s. It is popular because it looks menacing and is a modular weapon, allowing owners to swap out different barrels, chambers, grips and stocks. It is not more powerful than other legal weapons like the popular 30-06 Springfield or .300 Winchester Magnum.
Nevertheless, it is highly accurate and can use a magazine with up to 100 rounds. Moreover, it uses a thinner .223 caliber bullet than the 9mm handgun, which moves at a much higher velocity and can go through multiple barriers. The question is whether banning this one weapon, and not equally powerful lawful weapons, can be justified. This could be too close to call judicially.
Imposing waiting periods
Reasonable waiting periods, often three days, are likely to survive judicial review. However, they are unlikely to end massacres or school shootings. The Las Vegas and Parkland shootings both involved long-planned accumulations of legal weapons. Nevertheless, the waiting period can allow the government to check and respond to improper purchases.
Imposing age limitations
The new lawsuits raise the question of age limitations and another difficult challenge for gun control, though the federal government has previously prevailed on age limits and 71 percent of people in a recent poll favored age limits on guns. The strongest case may be the Oregon lawsuit by Tyler Watson, who is 20 years old in a state that allows for the purchase of guns at 18. Dick’s Sporting Goods and Walmart refused him the purchases despite a state law banning discrimination based on age in places of public accommodation. The stores would need to justify denying service to Watson based on his age.
Statistically, it may prove difficult to show 18 to 20 year olds are more dangerous as a class to warrant this ban. According to federal statistics, men aged 18 to 21 accounted for 8.7 percent of violent crimes. Women in this age bracket, who are also barred, accounted for only 1.8 percent. Moreover, men aged 21 to 24 accounted for 9.2 percent of such arrests.
The NRA lawsuit also raises Second and Fourteenth Amendment challenges. The law bars the purchase of any gun of any kind for this age group. This includes a ban on hunting rifles and shotguns, despite the large number of young hunters and recreational shooters. That is the total denial of an individual right and must be justified on either an intermediate or, more likely, a strict scrutiny basis.
However, the NRA has lost on a direct age discrimination challenge before. In National Rifle Association vs. Bureau of Alcohol, Tobacco, Firearms and Explosives in 2013, the Fifth Circuit upheld the federal law that prohibits federally licensed firearm dealers from selling handguns to people under age 21. This, however, means all guns of any kind. California, Florida and Vermont are considering similar bans. A state will likely need to show that this was a narrowly tailored means to achieve the compelling state interest in reducing school shootings and related crimes.
In all of these proposals, courts will demand more than a cathartic response to a national tragedy. These cases could separate the real from the rhetorical in gun reform and we are likely to learn much more about the newly minted right to bear arms.