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The New Independent Party Blog

This Blog is maintained by Mike Barron, Executive Director and Founder of the New Independent Party. The views expressed here are not necessarily those of the Party, its Board of Governors or its Members.

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Gun Control

The recent tragedy at a movie theater in Aurora, Colorado, in which at least a dozen people were killed and scores more were injured by a well-armed individual, is bound to turn attention toward the issue of gun control. 

Not coincidentally, I just finished reading a great book on the subject of gun control by Adam Winkler, a constitutional law professor at UCLA. The book, Gunfight, provides a nice, balanced review of the history leading up to the recent Supreme Court decision on gun control: D.C. v. Heller. This landmark decision explicitly laid out, for the first time, the Supreme Court's position on what the Second Amendment really means. (There was a much earlier Supreme Court decision, U.S. v. Miller, that addressed the issue, but it did not shed much useful light on the subject.)

Despite a long history of lower court rulings that the Second Amendment only prohibits federal laws (including laws passed by the District of Columbia) that might interfere with the forming of militias, the Supreme Court held in Heller that the Second Amendment also provides protection against federal laws infringing on the ability of individuals to keep guns for their own self defense. 

Heller makes one thing unambiguously clear: all gun control laws that prohibit, or severely restrict, the use of hand guns and traditional long guns, in the home, for personal self defense will be held to be unconstitutional, whether or not such laws might be manifestly effective at improving public safety and reducing gun violence.

Justice Scalia, however, noted, in his majority opinion, that, "like most rights, the right secured by the Second Amendment is not unlimited." "The right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." He concludes that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." He goes on to say, citing U.S. v. Miller, that "we also recognize another important limitation on the right to keep and bear arms....that the sorts of weapons protected were those "in common use at the time.'" This certainly permits restrictions on the right to keep machine guns and seems to keep open the possibility of controlling ownership of semi-automatic assault weapons and other "dangerous and unusual weapons."

A subsequent Supreme Court decision, McDonald v. Chicago,  ruled that the 14th Amendment extends the protection of the Second Amendment to individuals against laws passed by the states and local governments.

These decisions, while prohibiting gun control laws that ban all gun ownership or prevent their ownership for self defense, allow federal, state, and local governments to impose a variety of restrictions on how guns are acquired, what types of guns citizens can possess, who can possess them, and where they can be taken.

The public policy debate on gun control, apart from the unlikely potential for a constitutional amendment, is therefore framed around what kinds of restrictions are justified based on the data and history of our experience with gun control.

The New Independent Party's Platform addresses the issue of Gun Control in a manner completely consistent with the recent Supreme Court decision in D.C. v. Heller. What it does not address is where the line should be drawn as to what constitutes a reasonable restriction on the constitutional right to bear arms and what does not. My personal position, which I also think is consistent with Heller, is that the burden of proof lies with the government to demonstrate that any proposed restriction on the right will provide a material improvement in public safety and will not impose an undue burden on the individual's right to bear arms for their personal defense. The D.C. and Chicago gun control laws would never have passed this test. I believe the existing restrictions on the ownership of machine guns would. The restrictions on semi-automatic assault rifles that recently expired would probably not pass the first test, because there are other weapons that are equally lethal and because the restrictions had loopholes that made them unenforceable.

Gun control advocates might argue that it is unfair to criticize gun control laws on the basis of loopholes created at the insistence of gun rights advocates. It may be unfair, but it is also reasonable that we should not to pass symbolic legislation, that imposes burdens on law abiding citizens, without a reasonable expectation that the legislation will be effective at improving public safety.

If the courts ultimately embrace the notion that a legislative burden of proof must be met for gun control legislation to be deemed constitutional, what will it mean? First, it would mean that regardless of the evidence on effectiveness, complete bans on hand guns and traditional long guns in the home for the purpose of self defense will be held to be unconstitutional. Second, it would mean that other restrictions would be held to be constitutional if the legislative history of the acts indicated that the government had acted on reasonable evidence that the legislation would materially improve public safety and would not impose and undue burden on the rights of individual citizens.

Given the court's traditional deference to legislative actions, this second test probably means no more than that there must be a legislative history that these issues were addressed. It would be unlikely that future courts would substitute their own weighing of the facts to rule a particular statute unconstitutional unless it violated the first test.

As a a consequence, while there may be a long series of court battles over prior gun control acts, it is my belief that local, state, and federal legislatures can avoid constitutional challenges to future gun control legislation by simply avoiding blanket bans on gun ownership and by being attentive to carefully weighing the public safety benefits of legislation and its burden on law abiding citizens during the legislative process.

What I hope this means is that the issue should gradually disappear from the courts and become a tightly framed, data driven, legislative question, rather than the emotionally charged issue it has been for the last few decades. 

I believe that there is a permanent role for the courts to play here here and in most other areas of constitutional law that is consistent with the philosophy of "originalism" but recognizes that the framers could not fully have anticipated technological change. The New Independent Party"s Platform states, in the Judicial Appointments plank, that the Constitution should be a binding document that should be interpreted based on the original intent of the framers. The courts should not reinterpret it based on changing social preferences, like our attitudes toward death penalty. They must, however, reinterpret it in the light of technological changes. 

For example, Scalia, implicitly decided that handguns and traditional long guns kept in the home are not "dangerous or unusual weapons."  I suspect that a modern semi-automatic hand gun, or semi-automatic rifles with a telescopic sights, would have been considered quite "dangerous and unusual" in the late 18th century. I agree with Scalia's judgement that, despite this, these guns are covered under the "original intent" of the framers. Originalism can take one only so far before some degree of latitude is required to deal with technological change.

Having said that, I do not believe that this discretion should extend to interpreting the Constitution to be consistent with current popular sentiment.

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