NO, YOU DON’T HAVE A CONSTITUTIONAL RIGHT TO A BAZOOKA

Students at Marjory Stoneman Douglas High School in Parkland, Florida grabbed the nation’s attention last week by taking their campaign for gun law reform to the state capitol in Tallahassee and to Washington.  Their anguished, yet reasoned cries for change followed the Valentine’s Day massacre of 17 people at the school by a 19-year-old former student who tipped off his intentions, yet still legally purchased the AR-15 assault rifle and high capacity magazines he used in the attack.  Well articulated arguments by the students, combined with obvious pain, made many in the pundit class say this protest felt different from others heard in the wake of mass shootings.

One thing was different.  In town hall meetings in Florida, the students and their supporters put politicians on the hot seat, most of them Republicans like Florida Senator Marco Rubio who accept money from the National Rifle Association and do its legislative bidding.  Protesters made clear they plan to stay active and will vote against those who don’t help them make guns harder to get.  Time will tell if they live up to that pledge but, for now, the students seemed to us to occupy both the moral and political high ground.

Basics

The student protests exposed fundamental misunderstandings many Americans hold about gun rights in this country.  The phrase “Second Amendment rights” gets tossed around in a way suggesting existence of an unfettered right of individual citizens to own any gun they want for any purpose.  It has become shorthand for everything the NRA wants – the main thing being that more guns represent the best solution to any gun problem. Even the current, rightward -leaning United States Supreme Court hasn’t gone that far.

Until the Supreme Court decided District of Columbia v. Heller in 2008 and McDonald v. City of Chicago in 2010, both by 5-4 margins, it wasn’t clear the Second Amendment, which states “[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,” granted any right of individual gun ownership.  The amendment’s convoluted phrasing could mean individuals can own guns only in connection with military service or law enforcement.  Heller and McDonald rejected that idea, but did so in a way not consistent with the broad interpretations guns rights advocates throw around in public debate.

Those two cases established an individual right to keep and bear arms for what the court called “traditional” purposes like self-defense.  Local governments in Heller and McDonald enacted bans on handguns; the District of Columbia, in Heller, also required that owners of rifles and shot guns keep them unloaded and disabled in homes.  The Supreme Court concluded such restrictions excessively burden the right to keep guns for self-defense, a “traditional” purpose the founders had in mind in enacting the Second Amendment.  The court also said, however, it wasn’t approving unlimited gun rights.  Government could still prohibit concealed weapons, prevent mentally ill persons and felons from buying guns, and keep guns out of places like government buildings and airports. 

In murky language that didn’t affect the outcome in Heller (lawyers call such musings dicta), the court suggested, but did not decide, that government can regulate military weapons like machine guns.  Lower court cases since Heller, none of which the High Nine has taken up, seem to confirm the view that the judicial branch won’t let everyone have military-style guns.  Imposing limits, therefore, on automatic weapons and high capacity magazines wouldn’t trample anyone’s “Second Amendment rights.”

Only so far

Recently, the Supreme Court let stand a lower court ruling upholding California’s ten-day waiting period on gun purchases, even for people already legally owning guns.  The court’s refusal to hear the case drew a stinging retort from Justice Clarence Thomas, who wrote a 14 page dissent, complaining that “the Second Amendment is a disfavored right in this Court.”  He speculated that if California had infringed “favored rights” like abortion, speech, or search and seizure limits the court would have acted.  Leaving aside flaws we as lawyers might find in Justice Thomas’s legal reasoning, his complaints about the high court’s unwillingness to wade back into the Second Amendment debate indicates the court would defer to legislative limits on destructive weapons, permitting states and the federal government to take action on issues the Florida students have been pushing.

All of us have joked – though it’s really not a joking matter – that some people think they’re entitled to brandish a bazooka, or maybe even drive a tank to work, in exercising their “Second Amendment rights.”  The NRA has never, to our knowledge, recognized that the Second Amendment doesn’t go that far.  What it has done is always push the envelope in claiming broader, more expansive gun rights.  We assume gun rights stop somewhere, but the NRA never says where that is.  In the last week or so, the Florida students have been in the business of drawing the line on where gun rights stop.  Their line makes a lot more sense to us right now.  What do you think?