Just What Kind of Gun Control Laws Can the States or Federal Government Enact Under the Second Amendment?
Does either the federal government or the individual state governments have the run to restrict or outright ban guns? And if they do, what does restrict or ban really mean? Assuming that neither the state or federal government have the right to ban or restrict possession of guns, does that mean neither has the power to restrict the sale, importation, or manufacture of guns? Does the exact same logic apply to both guns and ammunition? And is there a difference between handguns and more deadly weapons, like semi-automatic assault rifles?
One thing that most people are not aware of is the fact that the Bill of Rights to the federal Constitution did not originally mean very much at all. That was because until the passage of the Due Process clause of the 14th Amendment after the civil war, the Bill of Rights only limited the federal government. Before the 14th Amendment, any state law that violated the federal Bill of Rights was legal so long as it did not violate the particular state's constitution.
After the passage of the 14th Amendment, however, the United States Supreme Court created the "selective incorporation" doctrine. That meant the Bill of Rights would apply to limit state power on a case by case, amendment by amendment basis. If the Supreme Court held that a particular right enumerated in the federal Bill of Rights had been incorporated through the Due Process clause of the 14th Amendment, that meant any state law that violated that right was invalid, even if it did not violate that state's constitution.
But until 2010, the Supreme Court had not decided whether the Second Amendment applied to state governments. That is, until McDonald v. Chicago, there was no Supreme Court ruling that the Second Amendment of the US Constitution limited a state from restricting gun rights or enacting any gun control legislation at all. In that the case, the Court ruled that the Second Amendment was incorporated, and thus a limitation on individual state's power to enforce gun control laws, to the extent the Second Amendment is defined in another case called District of Columbia v. Heller: "We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller."
That brings up the question, what did the Supreme Court rule that Second Amendment meant in Heller? Judge Scalia wrote:
The Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding... We … read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns...
That means laws prohibiting possession of some kinds of weapons were constitutional so long as it was “supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” That, of course, leaves a lot of room for both Congress and state governments to ban 'dangerous and unusual weapons' (semi automatic rifles perhaps). That reasoning is why there never was a serious NRA challenge to the assault weapons ban in effect from 1994 t 2004.
Also, the Heller decision did not address whether the Second Amendment applied outside of a gun owner's home because that decision only struck down a law banning handguns kept in the home for self-defense. In a Seventh Circuit Court of Appeals decision, Judge Posner wrote a majority decision that struck down an Illinois law that banned carrying a loaded gun in public. Judge Posner based his decision on Heller, but the exact rational he used is ambiguous to say the least. Oddly, Judge Posner claimed his review of the evidence was inconclusive whether the law would save lives. Despite that claim, he then said that evidence was irrelevant: "[a]nyway the Supreme Court made it clear in Heller that it wasn't going to make the right to bear arms depend on casualty counts". Why on Earth a federal judge would even review the evidence in the first place is beyond me. That is clearly a legislative function, not judicial.
One further issue significant issue remains: I have not seen any cases regarding the distinction between a law banning the possession of guns and another one banning the sale, manufacture, or importation of guns, even hand guns. By way of example, a law that makes it illegal to possess marijuana is not the same thing as a law that makes it illegal to manufacture, traffic, or sell marijuana. I make this point because the Court ruled the Second Amendment was the right to "keep and bear arms." Obviously, that includes the right to posses a gun. But that does also include the right to buy a new one, sell one, make one, or import guns from a foreign nation?
Until that issue is decided, it seems that at least the federal government, through its broad Commerce powers, may not have the right to take guns that already exist, but may have the power to stop the increase of new guns or resale of used guns. Thus, the way I understand current Second Amendment law is that neither the state government nor the federal government can ban personal possession of handguns, but that either may ban "dangerous and unusual weapons" like short-barreled shotguns. And there may be room to ban the commerce of all guns, including handguns. If in fact that is true, Congress could theoretically ban the sale, manufacture, and importation of ammunition, effectively achieving the same result as a total ban on guns.
For more information regarding guns and the Constitution, see the following posts this heading entitled "Guns". And I will be hosting a radio show on this topic Wednesday Dec 19 at Noon Arizona time. You can see it here "Newtown School Shooting: What can be done?".