January 16, 2013
(Editor’s note: After last month’s massacre at Sandy Hook, Washington looks poised to create its first new gun control law in 20 years. Throughout the month of January, we’ll be looking at the history and current landscape of gun control and gun ownership laws.)
Yesterday, New York passed a comprehensive gun control law, the first U.S. state to do so since the Connecticut elementary school massacre in December that left 20 students and 6 adults dead.
New York Governor Andrew Cuomo billed the law as “the most comprehensive package in the nation,” and expressed his hope that it would serve as a template for new federal gun regulations.
For that to happen, the law has to survive the legal challenges that it is sure to face, challenges that face a much greater threat since the Supreme Court’s 2008 and 2010 rulings, District of Columbia v. Heller and McDonald v. Chicago, respectively.
So what does this new law do that could make it vulnerable to a successful legal challenge?
The biggest change that the law enacts is the redefinition of “assault weapons” under New York law.
Previously, New York law made it a felony to possess an assault weapon; that’s still the case, but the definition of “assault weapon” is now far broader; in addition, the loophole that exempted guns manufactured before 1994 has now been closed; consequently, the law bans a lot of guns.
The law also:
- creates a statewide police registry of legal firearms (i.e. non-assault weapons);
- requires that federal background checks be performed on all purchasers of guns through private sellers;
- makes the unsafe storage of legal firearms a misdemeanor (that section also has a provision specifying that gun owners should take precautions to keep guns away from someone “adjudicated mentally defective”);
- revokes or suspends licenses of individuals with mental illness who, in the opinion of mental health professionals would pose a danger to themselves or others should they possess guns;
- prohibits the carrying of firearms on school grounds; and
- enacts broad new regulations on the sale of ammunition, including stricter controls of Internet sales.
There might be a few small details that I missed, but that’s the gist of the law.
What, if any, of the law runs afoul of Heller and McDonald?
Heller held that the Second Amendment enshrines an individual right to gun ownership for the “lawful purpose of self-defense;” McDonald held that this right is enforceable against the individual states.
Okay, so what does this “right” entail?
The laws that were invalidated by this “right” were outright bans on handguns (in the District of Columbia in Heller and in the city of Chicago in McDonald), so if there’s one thing that this right prohibits, it’s an outright ban on guns.
But that’s not what the New York law does.
True, it does make a great deal more guns illegal, but it does not ban handguns per se (as long as the handgun doesn’t have “a manufactured weight of fifty ounces or more”).
Thus, a narrow reading of Heller and McDonald would uphold this new law.
However, the tricky thing about these two rulings is that the Court didn’t really say what other restrictions are prohibited under the Second Amendment.
Heller explicitly stated that the ruling “should not 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.”
Heller also recognized there is a “historical tradition of prohibiting the carrying of dangerous and unusual weapons,” which the New York law, in its “Statement in Support” cites to in an apparent declaration that the law is in compliance with Heller and McDonald.
But it’s not up to a state legislature to decide what is in compliance with Supreme Court precedent; it’s up to the Supreme Court itself.
And since Heller was the first time that the Supreme Court actually recognized any individual right to bear arms, there isn’t much for state legislatures to rely on aside from the ruling to determine what gun restrictions are allowable.
So, while it may seem like a cop out, I’ll have to conclude for now that we just won’t know how this new New York law would fare should it come before the Supreme Court.
And unfortunately, the same goes for any federal assault weapons ban that follows in the New York law’s footsteps.
Despite any claims otherwise, no one know whether any new firearms restrictions aside from outright bans are constitutional under Heller and McDonald.