It’s time to stop letting the NRA scare the burgeoning gun safety movement led by courageous student survivors into accepting small-bore reforms out of mistaken belief that stronger gun safety laws would be unconstitutional.
By Miles Mogulescu, J.D. / 02.28.2018
The NRA and its politician servants have convinced much of the media, and with much of the public, that most gun control legislation – like banning civilian ownership of military-style assault weapons, or universal background checks – would violate the Second Amendment.
Most gun control legislation being proposed in the wake of multiple mass shootings, and most gun control laws already on the books in many states, are fully Constitutional under The Supreme Court’s interpretation of the Second Amendment.
It’s time to stop letting the NRA and its allies scare the burgeoning gun safety movement – led by student survivors from Parkland, Florida – into accepting small-bore reforms out of a mistaken belief that stronger gun safety laws would be unconstitutional. Gun safety is about politics and the power of big money over politicians, not about the Constitution.
The Supreme Court’s Take On The 2nd Amendment
Here’s the real legal skinny:
In its 2008 decision, District of Columbia v Heller, the Supreme Court held for the first time since the Bill of Rights was adopted in 1789 , that the Second Amendment guarantees an individual right to possess a handgun at home for self-defense, separate from participation in a militia. (In my view, Heller was wrongly decided by a 5-4 vote , ignoring the Second Amendment’s injunction that the right to bear arms exists in the context of a “well regulated Militia.”)
But what the NRA doesn’t want you to remember is that Heller did not confer on individual citizens the constitutional “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
The Supreme Court held that laws banning “dangerous and unusual weapons” such as an M-16 and other firearms most useful in military service are consistent with the Second Amendment.
Moreover, the Supreme Court gave examples of gun control laws it found to be “presumptively lawful” including laws which:
–Ban firearm possession by felons and the mentally ill.
–Ban firearm possession in sensitive places like schools and government buildings.
–Impose conditions on the commercial sale of firearms.
The Court made clear that this list is not exhaustive.
Constitutional Gun Control Legislation
In short, contrary to NRA propaganda, most of the gun control laws being proposed in the wake of multiple mass shootings (and gun control laws already on the books in many states) are Constitutional and DO NOT infringe the Second Amendment.
It would not be unconstitutional under Heller for the federal government and/or states to enact and enforce most of the measures being proposed by the gun control movement. These include:
–Banning the sale and/or possession of military-style assault weapons such as the MR-16 and high-capacity magazines used in many recent mass shootings (not to mention nuclear weapons, tanks, fighter planes, or anti-aircraft missiles, which even the NRA would recognize as within the government’s Constitutional power to ban from private ownership.)
–Universal background checks, including closing the gun-show loophole.
–Preventing people like the mentally ill, people on the terrorist watch list, people who commited domestic violence or with restrainging orders against them, and convicted felons from buying or possessing any firearms.
–Bans on ordinary civilians carrying any guns, including handguns, in sensitive places like bars, churches, schools, and government offices.
New York, California, New Jersey, Maryland, Massacusetts, Connecticut and the District of Columbia currently have assault weapons bans and the same states plus Colorado ban high capacity magazine.
The same states plus Washington, Oregon, Nevada, Nebraska, Iowa, North Carolina and Rhode Island mandate universal background checks. None of these laws have successfully been challenged as Unconstitutional.
So when the NRA and its allies imply that bans on military-style assault weapons or universal background checks violate the Constitutional rights of its members and other Americans, it’s lying and trying to intimate the movement.
Florida’s Republican Governor Rick Scott claims that increasing the elibible age to buy guns, including assault weapons, from 18-21 is a major concession, and the Parkland students should be thankful. But why does any civilian need military-style weapons.
In sum, the fight over most gun control measures is political, not Constitutional.
The question is not whether the Supreme Court will uphold these types of sensible gun control regulations—They are fully within the legal ambit that the Supreme Court found permissible in Heller.
The question is whether our political leaders—and particularly the Republican Party, whose campaign finances often make it seem like the wholly owned subsidiary of the NRA—will have the courage to buck the NRA and protect the life and safety of our children, students, and other Americans.
If not, those politicians must be defeated.