Why Gun Control Legislation Will Likely Pass Supreme Court Review
Gun control advocates got a rare bit of good news from the Supreme Court this week, declining to hear a case brought by gun owners challenging a Georgia law that bans the carrying of firearms in public locations like churches and other houses of worship.
The law passed in 2010 when the legislature eliminated a firearms ban at generic “public gatherings” and replaced it with a list of eight specific places where firearms would not be permitted and was immediately challenged by the gun owners group GeorgiaCarry.org and a minister who argued a First Amendment constitutional right to bring a gun to church. The minister argued the new law forced him to choose between his First Amendment religious freedom guarantees and a Second Amendment right to bear arms.
On the same day as the Aurora theater shooting massacre a three-judge panel of the 11th Circuit Court of Appeals flatly rejected the First Amendment argument, holding that the group and the minister failed to show the law interfered with his sincerely held religious belief since gun ownership is not a basic tenant of Christianity and owning a gun and bringing it to church not a part of exercising that religion.
But this is the key point to pay attention to here. The 11th Circuit also rejected the Second Amendment challenge holding that the group’s belief that there is an individual right to carry a gun into a place of worship did not trump a private property owner’s right to exclusively control who is allowed on their premises and under what circumstances.
By refusing to hear the appeal of the 11th Circuit decision, that decision stands as good law. And it should. Appeals Court Gerald Tjoflat, writing for the 11th Circuit panel wrote that the Georgia gun law was written with certain places banned because the Legislature was “concerned that the carrying of weapons … would likely present an unreasonable risk of harm to people who assemble in eight specific locations” — places of worship, government buildings, courthouses, prisons and jails, state mental health facilities, bars without the owner’s permission, nuclear power plants and polling places and their immediate surroundings. The Second Amendment argument that the preacher and GeorgiaCarry.org made, Tjoflat wrote, asked the court “to destroy one cornerstone of liberty — the right to enjoy one’s private property — in order to expand another — the right to bear arms. This we will not do.”
This refusal to take the holding of District of Columbia v. Heller, the 2008 Supreme Court case that struck down a ban on handguns kept for home self-defense, saying it violated the Second Amendment, and expand it to any ban on guns in public places is a sign of some sanity among our federal courts. Gun rights advocates insists Heller stands for the proposition of an unfettered individual right to own and carry a gun (any gun) and have brought over 500 challenges to gun laws in the wake of the decision.
Thankfully they have not been very successful. As noted by The New York Times, with the exception of a recent Seventh Circuit decision that struck down an Illinois law that banned loaded guns in public, federal courts have upheld federal laws banning gun ownership by people convicted of felonies and some misdemeanors, by undocumented immigrants and by drug addicts. The federal courts have also upheld laws making it illegal to carry guns near schools or in post offices and laws concerning unregistered weapons. And they have upheld laws banning machine guns and sawed-off shotguns.
With this latest move, and even in the language of the Heller decision itself, there’s no reason to think the Roberts Court would not support a ban on the kinds of weapons used in Aurora and Newtown. Writing for the majority in Heller, Justice Antonin Scalia noted that laws banning “dangerous and unusual weapons” are “another important limitation on the right to keep and carry arms” and gave the example of “M-16 rifles and the like.” And as reported by the New York Times, when the case was first argued in 2008 Scalia suggested other kinds of weapons and ammunition could be regulated as well. “I don’t know that a lot of people have machine guns or armor-piercing bullets,” he said. “I think that’s quite unusual.”
The decision came the same day gun violence victim Rep. Gabby Giffords and her husband announced their new initiative aimed at taking on the gun lobby and curbing gun violence and on the second anniversary of the shooting in Tuscon that left six dead and on the second day of court proceedings in the case of James Holmes, the shooter who opened fire in a movie theater in suburban Colorado killing 12 and injuring almost 60.
Could this be the sea-change gun control advocates have been working for? In the wake of the sheer terror of Newtown, and the continued body-count in this country thanks to gun violence (nearly 700 gun deaths in this country SINCE Newton) I certainly hope so.
Photo from betancourt via flickr.