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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
For more information email: tflynn@clarkstonlegal.com

Tuesday, March 20, 2018

Assault Rifles and the Right to Bear Arms

Given the regularity of mass shootings in the U.S., with their attendant state law reactions banning certain assault-style weapons, someday soon there will be a petition for certiorari granted by the SCOTUS to take yet another look at one of our bedrock individual liberties. The last time the high-court considered the merits of a Second Amendment right to bear arms case was back in 2010.

SCOTUS set the legal agenda relative to the right to bear arms in its 2008 District of Columbia v Heller decision. In that case and in McDonald v City of Chicago, Justice Antonin Scalia struck local ordinances banning handguns.

These cases, however, left open the question of what standard should be imposed in reviewing the constitutionality of state hand gun laws. The so-called intermediate standard requires that a state hand gun law be "substantially related to an important government interest". A lesser standard merely requires that gun laws be reasonable and bear a rationale basis to the state's interest in their regulation.

Second Amendment advocates prefer the "strict scrutiny" standard of review. This standard presumes the state law is invalid unless the state satisfied a burden to demonstrate a "compelling state interest" to justify the policy on which the gun law is based.

Over the decades, three principles of jurisprudence have emerged relative to the Second Amendment. First, there is no such right to unlimited gun ownership. In his Heller opinion, Justice Scalia stated that not all weapons are protected under the Second Amendment such as "weapons that are most useful in military service—M–16 rifles and the like."

Second, courts addressing gun law cases in the modern era of monthly, if not weekly, mass shootings, will draw from the principled regulations laid out in the Heller case. These principles include: a general ban on assault or military grade weapons; required child protection devices such as trigger locks; banning classes of individuals such as convicted felons and the mentally ill from gun ownership; and universal registration requirements.

As has been demonstrated by past decades of mass shootings, however, nearly every one of these laws, both federal and state, are broken by a  murderous shooter. With shocking ease, the mentally ill person, the terrorist, or the felon, wind-up at a gathering of many many innocent people, gun in hand, ready to deal-out death to everyone in range.

Third, with the absence of a clear ruling by the SCOTUS adopting a specific standard to review state gun laws lower appellate courts will have continued influence in shaping this area of law.

In this regard, we take note of a recent en banc decision coming from the 4th Circuit Court of Appeals. In the wake of the Sandy Hook tragedy, where first graders were shot to death, Maryland passed a comprehensive package of laws totally banning assault rifles. In the decision upholding this package of tough gun laws, the 4th Circuit took a significant step in establishing precedent and providing a gun control guidepost for the other circuit courts of appeal across the nation.

Kolbe v Hogan was decided by the entire 4th Circuit bench and holds that state gun laws are reviewed under the [more lenient] "intermediate scrutiny" standard. This means that the state gun law is more likely to withstand the so-called "intermediate" scrutiny. The first three-judge panel of the 4th Circuit -the panel originally assigned to decide the case- struck the Maryland law by utilizing the "strict scrutiny" standard.

Gun advocates will curse the decision. Consider, for example, this well-thought-out Op Ed piece from the Washington Post's Voloch Conspiracy. Of interest to Second Amendment proponents, this piece draws a technical distinction between military weapons and assault-style automatic weapons like the long-infamous AR-15.

America must await another Second Amendment case for SCOTUS to finally weigh-in on the proper standard under which state gun laws should be reviewed. Interestingly, last month the SCOTUS declined to hear the Kolby case.

Will tougher gun laws prevent mass shootings? Unfortunately, we here at the Law Blogger say, probably not. But it's a start.

We base our pessimistic view on the ease with which anyone can acquire an automatic weapon, both seller and purchaser violating laws without a thought. Youtube has featured several recent individuals demonstrating how easy it is to purchase an assault weapon and plenty of ammunition to go along with it.

A decade ago, Australia passed laws that struck at the root of their gun violence epidemic; the government confiscated assault rifles and banned their manufacture and importation. Going after the source of the gun problem -the manufacturers- in this country will ignite a massive legal battle on the level of slavery, abortion, civil rights, and marital equality. We're a long way off from that here in America.

Over here at the Law Blogger, we'll be searching for that case. And while we search, and monitor and wait for the right case to come along, we'll be hoping that none of us come across a deranged killer with a locked and loaded assault rifle like so many of our children do.

Post #616
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2 Comments:

Anonymous Anonymous said...

First, the AR-15 is not an automatic weapon like the military M-4. It is a semi-automatic gun that fires only one bullet with each pull of the trigger.
Second, it is not easy to buy an automatic weapon. They are very tightly regulated, and have been for nearly 100 years.
Third, more laws will not stop evil people from doing evil, because criminals do not obey laws. That's why they're called criminals.

March 24, 2018 at 2:18 AM 
Blogger Timothy P. Flynn said...

Anonymous, thank you for the comment and for taking the time to read our post. One thing we have learned from comments on Clarkston Legal FB is that our nomenclature regarding guns is unspecific and, many commentators have asserted, inaccurate. However, to address this, we linked to a Washington Post article that is a great primer on the proper terminology of military-grade weapons. Also, as we noted, the seminal SCOTUS case addressing these issues does make a distinction relative to military grade weapons; we quoted conservative Justice Antonin Scallia. I feel like our efforts in this regard have gone unnoticed by the gun rights crowd who seem to read the headline and the first paragraphs of the post, then launch into their mean-spirited sermons.

Now, your comments seem accurate to us and make some sense. But we do point you to the Washington Post editorial linked in our post; you'll probably agree with its main points.

March 24, 2018 at 11:00 AM 

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