April 2013 Bar Bulletin
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April 2013 Bar Bulletin


Constitutional Limits on Gun Control An Oxymoron?

By Douglas Batey


In the February Bar Bulletin article, "Taking Aim at Gun Violence," David Perez proposed several restrictions on gun owners. Referring to the massacre of 20 children and six adults in Newtown, Connecticut on December 14, he stated, "there can be no question that we must do something to stop - or at least stem - this violence."

Massacres such as those at Newtown, as well as the drumbeat of murders by gang members and other criminals, should indeed cause us to consider the origins of these crimes, why people commit them, and whether changes to our laws and law enforcement policies should be made. Such analysis, if thoughtful and based on data, may be helpful. But striking out against lawful and peaceable gun owners by reflexively "doing something" can easily lead to bad public policy and laws that violate the U.S. and Washington constitutions.

Mr. Perez proposed three restrictions. He referred to the first as "clos[ing] the gun show loophole," meaning that private sellers of firearms would be required to conduct background checks on buyers and impose a waiting period before completing each sale. Federal law currently requires licensed firearms dealers to conduct background checks on prospective gun purchasers. A licensed dealer may transfer a firearm to the purchaser as soon as he or she passes a background check. Federal law imposes no such requirement on private, intrastate sales. Private, interstate gun sales are not allowed under federal law unless the transfer is made through a licensed dealer who conducts a background check on the buyer.

The article's second proposal is to ban "semiautomatic assault weapons." It is unclear whether the proposal is to ban only the sale of assault rifles or to ban their possession as well. The article's third proposal is to close what is referred to as the "straw purchaser loophole," by requiring gun owners to report lost or stolen guns. A straw purchaser is someone who buys a firearm from a licensed dealer on behalf of a third party, often because the third party could not pass the background check. Straw purchases are currently illegal under federal law.

Mr. Perez quotes the Second Amendment and contends that courts have "consistently concluded that [the Second Amendment] permits sensible firearm safety laws" and that his proposals would pass constitutional muster. But I think that conclusion is wrong and that the article's proposals would, if enacted, be unconstitutional.

Mr. Perez's analysis correctly begins with the text of the Second Amendment, but it stops there. The article ignores the U.S. Supreme Court's two recent landmark rulings on the Second Amendment: District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010).

Heller held that the Second Amendment protects an individual's right to keep and bear arms for self-defense, and characterized that right as a fundamental right. McDonald held that an individual's right to keep and bear arms is incorporated and applicable to the states through the 14th Amendment's Due Process Clause.

I will limit my discussion to the proposed ban on assault rifles, the article's most draconian proposal. Heller is highly relevant to that proposal because Heller likewise involved a gun ban - the District of Columbia's ban on handguns. The Court's reasoning in Heller, which invalidated the District's handgun ban, would almost certainly invalidate as unconstitutional any federal ban on assault rifles. The Court's holding in McDonald would apply Heller to invalidate any state ban on assault rifles as well.

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