Firearms: Prospects for change

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In the aftermath of hundreds of thousands of marchers throughout the nation demanding new gun control measures after the horrifying February event in Parkland, Fla., what can we expect from Congress and state legislatures?

Congress will certainly do virtually nothing between now and the November elections. In light of the rapid passage of last December’s $1.5 trillion tax overhaul by a bare majority, the House and Senate will do very little, if anything, in the remaining months of the year.

Former Justice John Paul Stevens, who turns 98 on April 20, was so upset by the Parkland shootings that he wrote an op-ed piece in the New York Times, calling for the repeal of the Second Amendment: “A well regulated militia being necessary to a free state, the right of the people to keep and bear arms shall not be infringed.” Repeal is impossible: It takes two-thirds of both houses of Congress and three-quarters of the states to ratify or rescind an amendment.

In calling for repeal, Justice Stevens clearly went way beyond a suggestion he made in his 2014 book, “Six Amendments,” when he suggested adding a few words along the following lines: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.” But that too would take a constitutional amendment. Not likely either.

That leaves the states. Massachusetts has long had strong gun control laws. On April 6, a federal judge in Boston dismissed a lawsuit brought against the commonwealth by the Gun Owners’ Action League and other groups, which challenged the ban on assault weapons and large-capacity magazines.

U.S. District Court Judge William Young, a nominee of President Ronald Reagan, ruled that these prohibitions fell outside the realm of the Second Amendment. State Attorney Maura Healey, who defended the law, commented that Judge Young’s “ruling vindicates the right of the people of Massachusetts to protect themselves from these weapons of war.”

Judge Young held that “the AR-15 and its analogs, along with large-capacity magazines, are simply not weapons within the original meaning of the individual constitutional right to ‘bear arms.’” His opinion was consonant with the Supreme Court’s 2008 ruling in Heller v. District of Columbia, when Justice Antonin Scalia declared that the Second Amendment protected an individual right to possess firearms for protection and recreation.

Justice Scalia also made very clear that “like most rights, the right secured by the Second Amendment is not unlimited,” and reasonable gun control laws could very likely pass constitutional muster.

Last year, the Supreme Court declined to hear a challenge to the Maryland ban on assault weapons, a very good sign for the law upheld by Judge Young, even if the gun owners appeal Judge Young’s decision.

A bill now debated in the Massachusetts legislature could enact a “red flag” law in Massachusetts, as Florida and Maryland recently did. This law would allow law enforcement officers to remove firearms from those considered dangerous to themselves or others. A concerned family member could also apply for a court order to have a firearm temporarily removed. In March in an op-ed piece for The MV Times, Janet Goldenberg, who called such a law an “extreme risk protective order,” advocated for its passage in Massachusetts.

Bills are pending in several other states, as well. Aside from Maryland and Florida, states that have already enacted red flag laws include California, Washington, Oregon, Indiana, and Connecticut.

Meantime, Florida’s gun control laws, until this past March, were among the most permissive in the nation. Permits were not necessary to purchase rifles, shotguns, or handguns, though convicted felons were banned from possessing a firearm. The state permitted people to openly carry a firearm only if they possessed a permit. Automatic weapons were prohibited, but not semiautomatic ones.

After the deaths of 17 people, including 13 students, at Marjory Stoneman Douglas High School, the Florida legislature and Gov. Rick Scott, a longtime staunch ally of the National Rifle Association, enacted a new gun control law. It raised the legal age to purchase a rifle to 21, and banned bump stocks (a.k.a. multi-burst trigger activators). As noted above, it also passed a red flag provision. It did not, however, prohibit the sale of semiautomatic weapons, the very kind used in the Parkland massacre.

The NRA sued the state the same day Gov. Scott signed the bill, claiming it violated the Second Amendment.

Scott was smart to sign the bill: He is now running for the U.S. Senate against the incumbent, Democratic Sen. Bill Nelson. The governor’s support of the bill will make him appear as a sympathetic candidate in light of the Parkland killings. Even so, federal courts will now have to determine whether these modest reforms are constitutional or not.

While we cannot count on Congress to do anything, perhaps the states will continue their glacial progress in enacting reasonable gun control laws. At the same time, they can preserve the right of those who hunt and need protection to possess firearms that have no relationship to a military force.

 

Jack Fruchtman, a seasonal Aquinnah resident, teaches constitutional law and politics at Maryland’s Towson University.