Will Court Challenges Shoot Down The Array Of New Gun Control Law?

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Photo courtesy of the St. Louis Circuit Attorney’s Office via Wikimedia Commons

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.

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

91 thoughts on “Will Court Challenges Shoot Down The Array Of New Gun Control Law?”

  1. Banning bump stocks won’t prevent ARs from being fired as if they were fully automatic . . . with rubber bands, no less.

  2. Rounds like .300 Win Mag are not “equally powerful” with the .223 Remington fired by an AR-15. They are in fact several times more powerful, as measured by muzzle energy.

  3. I agree with banning bump stocks. I don’t have an issue with restricting large capacity magazines. (Professor Turley – it is a magazine not a clip. Clip is misused almost ubiquitously in movies, the news, and even novels. So much so that I’ve actually made that slip, which made my Dad go bananas. If legislators actually write laws with the wrong term, that could have some unintended consequences. A clip holds rounds together with a little strip to load them altogether. The magazine is that metal rectangular piece where you load the bullets, and then insert the magazine into the gun. They are not the same thing.

    One of the issues facing gun owners is that non gun owners often write legislation, which can cause confusion. For example, there are politicians on record thinking that an AR-15 is fully automatic, when it’s just a fancy looking semi-automatic rifle.

    There are already waiting periods for many states. Again, not a big deal if it’s not truly laborious.

    I can understand why the public wouldn’t want an 18 year old to buy a firearm. The teenagers we see on the news in safe spaces with their teddy bears and bubbles seem frankly disturbed. However, it is a Constitutional right, and I don’t see how you can strip that right from millions of adults without any due process. Why do we consider teenagers mature enough to get married, have kids, and join the military where they can diffuse bombs and fire live rounds at enemies, then why would they not be mature enough to buy a firearm? Why can an 18 year old be enough of a man to get married, but be barred from defending his wife and children the same as any other American adult?

    I completely understand this need to stop these shootings. Guns were more prevalent and far easier to get n decades past, yet these shootings didn’t happen outside of the mob, and they mainly shot each other. Why are our youth collectors of grievances, entitled, sure in the notion that they have the right to change the world to suit their world view, or else they feel justified in committing violence? Somehow, our nation has thoroughly ruined this most recent generation. In addition to that, we seem unable to act on the numerous red flags these shooters often fly long before their savage attack.

    As a mother and a human being, I want all of our children to be safe at school. I want us all to be safe to go to the mall. I don’t want to worry about a homicidal maniac or a terrorist or a cartel or a gang shooting everyone up.

    The very first, least controversial step is to secure our schools. We figured out that airports need armed security, so I don’t understand the teeth gnashing over putting armed guards in all of our schools. Certainly discussion is warranted on what those guards look like – military, police, teachers, volunteers? But I want highly trained people who have passed a rigorous background check to be right there if there is an emergency. As we know, the police used their time to set up a perimeter instead of going in. That means what I’ve always been told came to pass. If someone is there to do harm, and you cannot defend yourself, you have to find a phone, call the police, explain the situation, wait for them to arrive, they have to assess the situation, perhaps set up a perimeter, and engage. That is a really, really, really long time when someone is planting a bomb, firing a gun, or hacking with a machete. It’s too much time if you are in danger.

    Harden up the schools to reduce the temptation.

    Get a system in place to identify potential school shooters and have the ability to respond to prevent an attack.

    Train teachers and police on how to respond to a school shooting or terrorist attack so that everyone knows what to do.

    1. I would also like to add that every single firearm out there is dangerous. There is no “safe” firearm. They are designed to kill animals or humans.

      This is kind of like a chainsaw. You can make improvements to make a chainsaw less dangerous to the user, such as improving reliability, strengthening the saw, and putting on a hand guard. But you cannot make the chainsaw less destructive to the tree.

      If people are truly against all firearms in the hands of civilians, then they should just be honest about that. Have an open and honest debate instead of trying to trick people into chipping away at the 2nd Amendment piece by piece.

      Frankly, if there are so many savages in our young generation who would shoot up children at a school, then they would probably move on to pressure cooker bombs or pipe bombs with nails. They would simply use whatever tool is available to them, and our kids would still not be safe.

      Identify the predators and try to stop them before they hurt anyone.

    2. Oh, and good analysis of the AR-15. Banning them makes no sense to me because they just look more scary cosmetically. You can still kill people just the same if there is no vertical pistol grip, and if the stock is made of wood instead of tacti-cool plastic.

      1. I think the public actually thinks they are banning something like the M-16, which is fully automatic and already prohibited.

    3. Karen,

      To me this is all due to the breakdown of the American family. There is not just one cause but a major one is what Squeek points out about single mother children. The chart she shows points out that although it is a huge issue with the black race, the other races trends are the same. To me, ignoring this problem will have the same results as the aids virus in the 80’s. Gays refused to change their lifestyles until it became everyone’s problem including hetero’s. As long as we keep pushing out judgment (standards) and/or religion in the family, out of wedlock children will continue to increase until it is all of our problem. The question is how do you change this? I don’t know. It seems like there needs to be some real suffering for it to get reset where people have to start looking at themselves. Right now it just feels like we are all just coasting along doing whatever waiting for something bad.

      1. I feel that we need to have the same education campaigns in high school regarding single motherhood that we do about drugs and bullying.

        If it’s the single highest risk factor for ruining your life, and that of your children, and consigning everyone to poverty and crime, then why in the world aren’t they educating children about the dangers? Everyone knows how babies are made, but clearly not everyone understands that they are chucking their future into the fire. Why aren’t boys being raised into men who take care of their children and their children’s mother? Who get married before staring a family, otherwise take precautions? What the heck is wrong with these guys, siring children here and there and leaving the women behind to deal with it alone? The government makes a poor substitute for a father. Why aren’t people protecting themselves and their partners from STDs? Because even the pill won’t do that.

        I agree that although it’s wrecked African American communities the hardest, single motherhood is rising among all demographics. Unless you are a wealthy movie star with a team of nannies, it’s going to have the same dystopian effect on your future.

  4. If the army, marines and national guard are armed with automatic weapons, tanks and canons, then how can a militia fight them if the Koch Brothers take over and we need a revolution. The people need automatic weapons to form a well regulated militia. We had one American Revolution. We may need another.

    1. Yes, and we all need to have our own tanks, cannons and small atomic weapons, so that we can battle it out with the federal government, “just in case.”

  5. We need every American trained, issued and encouraged to carry a gun 24/7. The bad guys are committing violent crimes by using guns they obtained illicitly. Arm the good guys over food stamps. Watch what happens. If Hillary was protected we should more so

    “The March Pew study, drawn from numbers obtained from the Bureau of Justice Statistics and Centers for Disease Control and Prevention, also found a dramatic drop in gun crime over the past two decades. Their accounting shows a 49 percent decline in the homicide rate, and a 75 percent decline of non-fatal violent crime victimization. More than 8 in 10 gun homicide victims in 2010 were men and boys. Fifty-five percent of the homicide victims were black, far beyond their 13 percent share of the population.”

    https://www.forbes.com/sites/larrybell/2013/05/14/disarming-realities-as-gun-sales-soar-gun-crimes-plummet/#527c826c3f7c

  6. “While the public overwhelmingly favors new gun controls” Can we have even a little bit of proof of this?
    “and 71 percent of people in a recent poll favored age limits on guns.” Polls show Hillary will win by a landslide!
    The rest of the article would seem to be spot on. Freedom isn’t free, it must be fought for vigorously.

  7. Hello my friends. It’s been another epic day on planet earth. Check out this AA-12 Shotgun. For duck hunting. As always have a nice day.

  8. I am ignorant when it comes to firearms. My bro and most of my friends own them – for self protection and hunting. If I lived in a high crime area or way out in the country I would get one and learn to shoot as too often it takes the cops too long to respond.

    1. Get a gun anyway. Not living in a high crime area, doesn’t mean that you don’t have to travel outside that area at times. Or, that criminals can not travel into your area. Plus, you may be deprived of the right to own a gun in the future and what happens then??? You can bet the criminals will still be armed.

      Do not buy into a normalcy bias. To wit:

      The normalcy bias, or normality bias, is a belief people hold when facing a disaster. It causes people to underestimate both the likelihood of a disaster and its possible effects, because people believe that things will always function the way things normally have functioned. This may result in situations where people fail to adequately prepare themselves for disasters, and on a larger scale, the failure of governments to include the populace in its disaster preparations. About 70% of people reportedly display normalcy bias in disasters.

      As for events in world history, the normalcy bias explains why, when the volcano Vesuvius erupted, the residents of Pompeii watched for hours without evacuating.[9] It explains why thousands of people refused to leave New Orleans as Hurricane Katrina approached[10] and why at least 70% of 9/11 survivors spoke with others before leaving.[8] Officials at the White Star Line made insufficient preparations to evacuate passengers on the Titanic and people refused evacuation orders because they underestimated the odds of a worst-case scenario and minimized its potential impact.[11] Similarly, experts connected with the Fukushima nuclear power plant were strongly convinced that a multiple reactor meltdown could never occur.

      The normalcy bias also explains why many Jews stayed in Nazi Germany despite increasing discrimination, harassment, and oppression. In his book Wealth, War, and Wisdom, investment strategist Barton Biggs writes: “By the end of 1935, 100,000 Jews had left Germany, but 450,000 still [remained]. Wealthy Jewish families… kept thinking and hoping that the worst was over… Many of the German Jews, brilliant, cultured, and cosmopolitan as they were, were too complacent. They had been in Germany so long and were so well-established, they simply couldn’t believe there was going to be a crisis that would endanger them. They were too comfortable. They believed the Nazi’s antisemitism was an episodic event and that Hitler’s bark was worse than his bite. … [They] reacted sluggishly to the rise of Hitler for completely understandable but tragically erroneous reasons. Events moved much faster than they could imagine.” Quoting this passage, investment advisor Porter Stansberry commented: “This is one of the most tragic examples of the devastating effects of the ‘normalcy bias’ the world has ever seen.”

      https://en.wikipedia.org/wiki/Normalcy_bias

      There is more at the link. If I may add, we live in a country where Blacks are being taught that White People are responsible for everything bad that happens to them. We should not be surprised that many already act on that premise, and that more will in the future. They are learning to act in packs, and to leave their neighborhoods in search of victims.

      Get a gun! Get two guns! Get a Smith and Wesson HRT knife! (about $10). Start reading up on personal safety issues. Please.

      Squeeky Fromm
      Girl Reporter

  9. Public safety is a compelling interest of the state. The same logic that legitimizes restrictions on machine guns and howitzers applies to any new innovations that offer increased lethality.

    The question I have is about user licensing to own firearms. This principle has been established for access to restricted firearms (such as Tek-9s). Does that not open the door to a law that requires user licensing for a much broader class of lethal weapons?

  10. I feel after they ban bump stocks, then they will ‘discover’ that all semi automatics can do this without a bump stock…and then we will all be felons after they ban all semi automatics…you will be labeled by the government, and once they do that they can do anything to you.
    Like the military killing kids during the Vietnam war…they didn’t kill college kids…they killed ‘radicals’…(only problem is the public had finally had enough and didn’t buy their BS anymore)…and this is what finally stopped the war.
    I’m not even sure our Government would be the worst if we were disarmed, our perpetual war has made us a lot of enemies around the world, but they know the whole population is armed. If that were taken away…who knows what they might do….

    I know a lot think no one needs a gun designed to kill people..does no one remember the Birmingham riots of 1963? Or 1965 Watts Riots? Or the 1992 LA riots, store owners were on their roofs with AR type weapons to keep looters away.(there have actually been MANY more riots), or more recently the Hurricane Katrina looting & killing. Citizens claimed they only kept looters away with Ar type weapons with large magazines.
    So what will citizens do when they have another “Battle of Athens”, (when WWII vets rebelled against their corrupt government). (They even made a movie about this.)
    How many times has our National Guard been called out to kill their own citizens? (When Unions were being formed, during disasters or when protests broke out.) Kent State & Jackson University had students shot by the National Guard…New Mexico University had students bayoneted by the National Guard!

    Maybe these anti-gunners don’t think they need a weapon any more, but they don’t speak for me….maybe they think our Government would never turn on us…it could never happen in America….BUT IT ALREADY HAS!

    I’ll take my chances with a few mad dog killers, rather than face my Government (or criminals/looters) defenseless.

  11. Former Police Chief Kessler apologizes for using profanity, insulting anyone or upsetting anybody’s feelings. Chief Kessler explains in this video.

  12. Mr. Hurley:

    I follow you with great anticipation of your next article. It is refreshing beyond all belief to see common sense reporting on any topic on which you write.

    I would like to make several comments about the report on pending gun legislation.

    As to bump stocks: I am a shooter of 70 years and I find them useless I think they are a “want to be” accessory. As an accessory, the BATF rightly says that they have no legislative authority in the matter. This is refreshing because they are not shy about pretending that they have such power. Many Americans couldn’t care less about the bump stocks future. The truth is that the “accessory” is turning into an icon for our civil rights battle, pitting those rights as we know them against a back drop of uneducated hysteria and pseudo government control.
    To me, it is even far more than that. The stock is the stock. But it’s fate is going to be decided by people (representatives, courts and the like). that truly have no idea of the repercussions of their decisions. This is dangerous politics and will not reduce blood shed one iota.

    The clip/magazine debate: I’ve been in law enforcement now for over 50 years. I have never and will never bring false data to court to prove a point. It is infuriating to listen to those with the audience’s ear, depict firearm information to courts, legislatures and the like that is patently untrue, misleading and false, just to support their cases against guns. The terrifying thing here is that life altering decisions are still being based on this type of false data.

    You mentioned Florida and the Las Vega shootings while citing the capacity issue. Note worthy is the fact that both of these events were allegedly tracked by the Fed. before they happened. Two things are in play here. Either both events were planned and paid for by outsiders and or, we witnessed some of the most accurate shooting in the history of the United States. . I really don’t care who this comment offends because those events generated a terrible loss of lives that could have been successfully prevented. It is time to stop pussy footing around the legislatures inability to tell the truth to the American people about these issues.

    So. Cruz had 6 magazines? No, clips! It is important and highly relevant information to have. Magazines is the answer,

    Banning the AR-15 rifle: Again, before you take it away, know what the hell you are talking about before you do it. Guns are emotional? Suppose your local government decides that cars of over 200 horsepower are too dangerous to be in the hands of civilians. After all. Speed is the third most prevalent cause of death in highway traffic accidents each year. Some 59,000 people a year? Whoa! We need cars though, we don’t need guns. Really? Unlock your doors then. So. The 30K car you bought last year has 305 horsepower. What can the Government do? Buy it back? You trade down? Seizure? What? Don’t think it can’t happen.
    The whole point is,… know what you are talking about. Firstly, as you pointed out, the AR is NOT an assault rifle. In fact, is it a rifle or is it a carbine.? Is it fed by Clips or Mags? What does it’s fire control system allow it to do. Ignorance of these facts must not infringe on citizens rights to keep and bear arms.
    In fact, national mandatory firearms training would give this country more safety for it’s buck that any 10 laws the legislature could write.

    Taking away the gun is the quickest and easiest route to socialism. Next I guess we will tackle the issues of the 250,000 patients who are “killed” every year in the nation’s hospitals. Whoops. Scalpels, gurneys and the anesthesia process are now against the law.

    Just a note: There are 195 countries in this world. America is far far from the most dangerous. Only 5 cities keep us at or near the top of the list. Take those cities away and we drop to 179 on that list. It is amazing to me that those cities represent sanctuary policies and have the strongest gun control polices in the Nation. And yet, they cry the loudest.

    “If you do not wish to seek the truth, you will be buried by a lie.

    William Penn 1777

    1. You had no need to go there; yet you threw in the irrelevant reference to your morality in pursuit of “law enforcement.” If you’ve been on the witness stand, you’ve testilied. I know your types think it was for the “greater good” or to get a “bad guy” off the street, but those sanctimonious legitimations don’t hide the fact that it’s perjury. Thankfully, most street cops aren’t the sharpest tools, and the recent ubiquity of security, dash and body cams allows defense counsel to more effectively show to the judge or the jury that “yes Virginia, cops do lie.” Every one of the testiliars that we catch on cross get put on the list of cops that the local DA’s office won’t sponsor as a witness any longer. If you’re not the kind of “law enforcement” who testifies in court, kindly disregard this missive.

      The blog owner’s last name is Turley.

      this is to “half-century of lawbreaking?” johnny

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