A gun-rights group is poised to challenge numerous California gun laws if the U.S. Supreme Court uses a gun-ban case out of Washington, D.C., to define the Second Amendment as an individual right.
“Any definition of the Second Amendment as an individual right is going to open up all kinds of legal avenues for us to overturn gun laws,” said Sam Paredes, executive director of Gun Owners of California. “We will change our focus from lobbying to legal action because the Legislature will be neutered. Any time they sponsor legislation we think is unconstitutional, we will challenge it.”
Paredes said his parent organization, Gun Owners of America, based in Virginia, has a legal fund ready to challenge state gun laws nationwide. He declined to say how much was in the account. But if D.C. loses its ability to maintain its gun ban on constitutional grounds, it will be “fundraising Disneyland” for pro-gun groups, Paredes said, and they would have little trouble gathering the money to challenge California’s assault weapons ban, the .50-caliber ban and numerous other gun laws.
The case in question, Heller vs. D.C., is the first serious Second Amendment challenge to gun laws in decades. It began in 2003, when attorney Bob Levy recruited several plaintiffs to challenge the city’s outright ban on handgun ownership. Oral arguments are set to begin in mid-March, with a decision due by the end of June.
While Levy is best known as a constitutional fellow at the Cato Institute, a libertarian think tank, he brought the case on his own. Levy agrees that the case could result in legal challenges, but he said the case is narrowly focused.
“It lays the framework for challenging gun laws nationwide,” Levy said. “It’s a necessary step,” he added, but not sufficient on its own. Lower courts would still need to rule that the case applied to state laws, he said, though it is likely they would; in almost all cases, courts have found that the Bill of Rights applies to state laws. Even then, he added, courts may still find that some types of guns could still be regulated, such as so-called assault weapons.
“Bob Levy has a very strong vested interest in making statements like that,” said Dennis Hennigan, legal director of the Brady Center to End Gun Violence. “He wants to make this case seem as unthreatening as possible. If you try to pin these guys down on which guns laws they think are consistent with the Second Amendment, they won’t tell you.”
At the very least, Hennigan said, defining the Second Amendment as an individual right would lead to years of expensive litigation, just to defend gun laws already in existence. The Supreme Court has ruled several times that the “right to bear arms” is dependent on the “militia” mentioned in the first half of the sentence. It’s only now that gun rights groups have the court they want — with a pair of new conservative justices in Samuel Alito and Chief Justice John Roberts — that Levy brought the case, he said.
“As soon as you separate the Second Amendment from its traditional attachment to the militia, you open up a Pandora’s box,” Hennigan said. “It’s an open invitation to right-wing activist judges, and there’s a lot of them out there.”
But Irwin Nowick, a senior consultant in the Senate Rules Committee who is widely seen as a leading expert on firearms law, said courts have long ruled that states could limit or ban guns most likely to be used by “ruffians, brawlers and assassins,” in the language of a court case from the late 1800s. He said it would be hard to use a Heller decision to overturn California’s assault weapons law. The state doesn’t ban these guns, Nowick noted, but limits them and requires that they be registered.
“If you look at all the decisions, including the D.C. Circuit in Heller, they upheld registration and licensing, quality requirements, safety training, and a slew of other regulations.”
Nowick noted that the common law differentiated between was an “arm” and what was not: “It is very clear that the founders did not consider small-sized handguns protected ‘arms,’ but larger-sized handguns were protected ‘arms’ subject to regulation.”
Normally considered a liberals, Justices David Souter and Ruth Bader Ginsburg are both sympathetic to “reasonable gun rights,” Nowick added. A narrowly crafted individual right could win 7-2, he said.
The next logical battle for gun rights groups is to challenge the Chicago firearms ban, said Alan Gottlieb, chairman of the Seattle-based Citizens Committee for the Right to Keep and Bear Arms. His group has been in touch with the attorneys in the case and would probably be involved in that litigation.
Gottlieb agreed that the .50-caliber and assault weapons ban would be logical laws to challenge in California. But he noted that the Roberti-Roos Assault Weapons Control Act of 1989 grandfathered in existing assault weapons owners, creating another set of legal hurdles to overturning the law.
“Technically, they didn’t ban them,” Gottlieb said. “A lot will depend on the wording coming out of D.C.”
Robert Ricker, executive director of the American Hunters & Shooters Association, said the fact that the Heller case was based in D.C. would limit its applicability to states. The district is directly governed by Congress and doesn’t have the same right to set its own laws as individual states. He expects the court to overturn the D.C. gun ban, but it could do so on narrow grounds and conceivably even avoid making an outright decision on the constitutional question.
In fact, Ricker noted, the federal Department of Justice has filed an amicus brief arguing for a narrow interpretation that couldn’t be used to overturn most state gun laws. If the court does make a more far-reaching ruling, he added, it won’t necessarily work out well for pro-gun forces.
“I think there could be a dramatic political backlash,” Ricker said.
Early on, Levy said, the National Rifle Association tried to convince him not to bring the case. Then the group filed its own suit and tried to have the cases consolidated, until its suit was dismissed in a lower court. More recently, Levy said, the NRA has filed a friend of the court brief and provided resources to help the case move forward.
There’s a reason the NRA stayed away from the case, Hennigan claimed. If it results in the wholesale rejection of state gun laws, he said, it could turn into a “political albatross” for Republicans.
“A lot of pro-gun politicians had better be careful what they wish for,” Hennigan said.