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So You Want to Fix Gun Control, Part 2: The Supreme Court

Welcome back to my ongoing series on everything fixing gun control. In the first part of this series, we explored the Second Amendment and the current interpretation the courts use in any related cases. In this part, we'll be expanding on this by digging deeper into some of the core Second Amendment cases from the past 100 years. Some of this will echo much of what was said in Part 1, but due to the significance of these cases, I feel they warrant repeating. I will also stress that I am by no means an expert. If I got something incorrect, feel free to correct me. My goal is for this to be educational to everyone in the community, including myself. With that said, we naturally have to start with the most significant Second Amendment case in recent times: DISTRICT OF COLUMBIA v. HELLER.


In DISTRICT OF COLUMBIA v. HELLER, the opinion of the Court holds several important findings:
The Supreme Court held that "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home." This one line covers two important elements. First, that there is an individual right to keep and bear arms. Second, that self-defense within the home is explicitly protected by the Second Amendment.
The Supreme Court Held that "the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose... We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons'." This line makes clear that limitations on a right can be lawful. As it relates to the Second Amendment, traditionally "dangerous and unusual weapons" may not be protected. The Court brings up other historical limitations that should no longer be in doubt, such as "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."
The Supreme Court held that certain limitations are UNconstitutional, such as a "requirement that any lawful firearm in the home be disassembled or bound by a trigger lock", or a "ban on handgun possession in the home". Regarding the latter, such a ban "amounts to a prohibition on an entire class of 'arms' that Americans overwhelmingly choose for the lawful purpose of self-defense." It's worth emphasizing that the scope of Heller seems to only explicitly cover "the lawful purpose of self-defense". Should another "lawful purpose" be established by the court, we may be able to infer that any "'arms' that Americans overwhelmingly choose for [that] lawful purpose" would also have the same protections under the Second Amendment.


While not part of the official holdings of the Court, the opinion of the Court in HELLER brought up the "bordering on the frivolous" argument that "only those arms in existence in the 18th century are protected by the Second Amendment." Maintaining consistency with previous rulings on our First Amendment rights, the Court stated that "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." This is officially held not long after in CAETANO V. MASSACHUSETTS in a per curiam decision. Specifically, the opinion of the Court in CAETANO asserts that stun guns, despite being "a thoroughly modern invention", are covered as "bearable arms". This decision has already been used to overturn several state laws, including New York's long-standing ban on the possession of nunchucks.


MCDONALD, a second notable case that followed HELLER, expanded upon the topic of incorporation. The opinion of the Court held that: "the Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States." This resulted in several other cases and rulings to be reconsidered or overturned within the district courts.


In a case that has since been made mostly obsolete, UNITED STATES V. MILLER ruled on what arms would fall under the protections of the Second Amendment. As it is a fairly nuanced decision, I'll quote the meat of it without comment: "In the absence of any evidence tending to show that possession or use of [the firearm in question] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense."
In other words, the Court held that arms must be a part of "ordinary military equipment" to qualify for the protections under the Second Amendment. HELLER went on to ground MILLER quite significantly: "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes." Despite neutering MILLER significantly, it's nonetheless fascinating to see how the court has evolved their opinion of the Second Amendment over time.


The final case worth mentioning is ABRAMSKI V. UNITED STATES, which examined the concept of "straw purchasing" of firearms. The Court defines a straw purchaser as "a person who buys a gun on someone else’s behalf while falsely claiming that it is for himself". In this case, the Court held that the punishment for straw purchases applies "whether or not the true buyer could have purchased the gun without the straw."


When discussing SCOTUS rulings, it's worth briefly mentioning the standards of judicial review that are used for cases such as the above. In general, when ruling on a fundamental right, the Courts apply "strict scrutiny". Under strict scrutiny, the government must demonstrate that any limitation to a fundamental right:
  • is necessary to a "compelling state interest"
  • is "narrowly tailored" to achieving this compelling purpose
  • uses the "least restrictive means" to achieve the purpose
Notably, the Supreme Court has not yet endorsed the use of strict scrutiny in cases primarily focused on the right to bear arms. They, and many lower courts, have instead opted for Intermediate Scrutiny. Under this less rigorous form of review, the government must demonstrate that the law or policy being challenged furthers an important government interest by means that are substantially related to that interest.
Until next time.
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