Legal Solutions  Blog

Since the December 2012 massacre at Sandy Hook Elementary School in Newtown, Connecticut, a renewed debate over gun control has taken hold across the U.S.

The typical arguments in this debate are whether and what types of new restrictions on gun ownership should be implemented (e.g. background checks, assault weapons and high capacity magazines, etc).

To the best of my knowledge, there is no mainstream argument in this debate calling for laws mandating universal gun ownership.

However, on April 1, 2013, the City of Nelson, Georgia enacted a new city ordinance which did just that: it requires “every head of household residing in the city limits is required to maintain and [sic] firearm, together with ammunition therefor,” or face sanctions (including up to a fine of $1,000).

Despite its enactment on April 1, the law isn’t an April Fool’s joke; it took effect ten days later on April 11.

The new law, interestingly named the “Family Protection Ordinance,” exempts certain classes from enforcement:

1. those with a “physical or mental disability which would prohibit them from using such a firearm,”
2. “paupers,”
3. felons, and
4. those “who conscientiously oppose maintaining firearms as a result of beliefs or religious doctrine.”

As far as I’m aware, no other government body (within the U.S., at least) has created such a law ever before, so there’s no real way of telling how such a law would fare under judicial scrutiny.

Fortunately, we’ll soon find out: the Brady Center to Prevent Gun Violence has filed suit to enjoin enforcement of the law and to further have it declared unconstitutional and unenforceable.

At the outset, my first question (as will be the court’s) was whether the Brady Center has suffered any injury-in-fact to maintain its standing to bring the suit.

To this point, the Brady Center alleges that one of its members, Harold Lamar Kellett, a resident of Nelson, has been forced to purchase a handgun for $646.59 along with ammunition for an additional $32.09.  Before the law was passed, Kellett did not own an “operational” firearm.

The complaint gives a few other injuries, such as a decline in property values because of the ordinance (which may be too speculative at this point), but that first injury should be sufficient.

In any case, let’s just skip to the actual claims of the lawsuit, which provide four different theories as to the law’s unconstitutionality.

Hot Doc: Brady Ctr. to Prevent Gun Violence v. City of Nelson

Source: Thomson Reuters News & Insight – National Litigation

The first, if you can believe it, is that the ordinance is in violation of the Second Amendment and the two recent Supreme Court rulings on it (District of Columbia v. Heller and McDonald v. Chicago).

The complaint asserts that, under Heller and McDonald, the Second Amendment gives to citizens an individual “liberty to determine how best to protect his or her home and family, including the freedom to determine that the most effective way to do so is not to maintain or permit an operable firearm in his or her home,” thereby “protecting their families and children from the violence of accidental firearm injuries, domestic violence, and suicide.”

An interesting interpretation of the Second Amendment, but still one not entirely inaccurate, since the Supreme Court itself held that the protection of one’s home is a “central component” of the Second Amendment.

However, that theory probably won’t be as persuasive as some of the others.

And the next of these claims is that the law violates Kellett’s right to privacy established by 1965’s Griswold v. Connecticut.

On this theory, the complaint alleges that the city has “violated the right to privacy of at least one of [the Brady Center]’s members by using the powers of government to force him to bring into his home an unwanted firearm and ammunition.”

The complaint claims that the decision whether to bring firearms into a household is one left to the individual, not the state.

The next theory states that the law violates the First Amendment’s speech protections, and this theory has two branches.

First, the complaint argues that the law forces citizens to profess speech (that they are impoverished, that they have disabilities, that they don’t believe in guns, etc), in violation of the First Amendment.

Second, under the 1989 Supreme Court decision Texas v. Johnson’s holding that the “freedom of speech includes freedom to act or not to act,” the Brady Center argues that the city is forcing “individuals to subsidize one side in a debated political question to the direct detriment of the [Brady Center].”

The final theory is that the law violates the Equal Protection Clause of the Fourteenth Amendment, in that it favors “heads of households” to the detriment of “non-heads of households.”

Stay with me: since the “heads of households” have all of the responsibility for complying with the law, they are the ones to decide how much money to spend on any firearms, or whether to comply at all (that is, whether to bring a firearm into the house without another household member’s permission).

Albeit, all of these legal theories are novel applications, but, as I said earlier, this law is itself entirely novel, so it’s unsurprising that arguments against it would be equally so.

Personally, this law strikes me as patently unconstitutional.  It forces citizens to keep a dangerous instrument in their home without their consent.

I’m not sure if that fits directly into any of the theories stated above or some other one, but it just makes the flavor of the law sharply unconstitutional.

So much so, in fact, that any judge not in the pocket of the National Rifle Association wouldn’t hesitate to strike it down.