CALawMama's Blog

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Experiences at the interface of life, law, and motherhood in Cali

Firearms Legislation Proposal

I wrote the following after Orlando, but I think it’s just as fitting now, following another tragic and senseless act of gun violence.

As a lawyer, I take very seriously my Oath of office to uphold and serve the Constitution of the United States of America.

One of the lessons that Justice Antonin Scalia imparted to me during his tenure as my Separation of Powers co-professor, was that sometimes laws can seem like a good idea, but be simply unconstitutional. I believe that many laws which attempt to affect the buying of firearms fall within this category.

The Second Amendment 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. [emphasis added].

Further, the landmark decision in D.C. v. Heller554 US 570 (2008), which dealt with a ban on handguns, provides one of the most significant backdrops within which to consider these issues.

The core holding in the case was based upon the reasoning that as an explicitly enumerated constitutional right– just as with every other core protection contained within the constitution– the protection of the right to keep and bear arms should not be, “subjected to a freestanding “interest-balancing” approach.”

In other words, because this right is explicitly mentioned, it must be protected, and not subjected to other interests, except within the parameters discussed below.

Furthermore, the Court stated, “the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents.”

Thus, the ability to purchase arms is arguably encompassed within the right to keep them, as the pronouncement affects the individuals whose rights are being protected. This makes sense because the ability to maintain a militia is annihilated if all of the guns are taken away.

However, the Court stated, “[l]ike most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

Shortly thereafter, the Court declared, “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.” [emphasis added].

I believe that the decision of a particularly hateful and murderous individual, who made the decision in cold blood to injure and kill over one hundred people has nothing to do with my constitutionally protected rights to keep and bear arms.

However, I am not so naive or callous as to think that nothing should be done.

One of my friends from college posted on his social media account, a rhetorical question, that if the shooter in Orlando was unable to procure an automatic weapon, say if he had had a knife, (or a better comparison I think, a handgun), how many people would he have been able to kill? The answer is undoubtedly not so many.

So I began to think, what if he had been able to procure 10 handguns, and they were all loaded? Perhaps he would have been able to discharge the first one, but due to the delay he would encounter in attempting to change weapons, perhaps this would have given some of the victims and opportunity to tackle him and prevent him from shooting further. This made it clear to me that perhaps the automatic weapons are the problem.

However, we know from experience that current laws regarding automatic weapons are not always enforced, and furthermore that criminals do not follow the laws. If they are legally prevented from buying weapons legally, they will simply attempt to purchase them illegally, such as on the black market.

That being said, I do believe there is a better way to simultaneously protect the rights of individual law abiding Americans, while addressing the serious issue of access to automatic weapons. I believe the constitutional solution is to pass legislation seriously restricting or banning the manufacture and sale of automatic weapons in the United States.

As this does not affect the rights of the individual to keep and bear arms, it arguably passes constitutional muster.

The Court in Heller explicitly stated the permissibility of laws addressing qualifications and conditions on the commercial sale of arms.

Additionally, by severely restricting the flow of these automatic weapons, it will not only make it more difficult for law abiding citizens to procure them, but it will simultaneously make it even more difficult to stock the black market supply.

I do realize that this sort of legislation could potentially have a serious impact on gun manufacturers, and I’m not sure how to resolve that moral quandary other than to implicate the balancing test of the potential interests of innocent Americans to not be murdered at an increasingly high speed versus the profit interests of gun manufacturers. I do not wish to have any American company lose its right to do business. However, I do believe that something reasonable needs to be done, and I believe that a difficult choice needs to be made.

Manufacturers that currently produce automatic weapons could pursue a business model that phases out production of automatic weapons, and increases production of handguns and hunting rifles, within whatever classification Congress negotiates with the National Rifle Association, for example.

I do think that there is a constitutional solution that is also reasonable and capable of achieving a meaningful change, and that all valid and legal stakeholders should have a voice in that conversation.

Respectfully submitted,

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