Modern Commentary on the Second Amendment and Gun Law

Today, the Second Amendment has become a focus of controversy in society with the wake of recent school shootings and shootings in public areas. The immediate reaction of major media outlets and political figures is to promote gun control and blame the NRA for these horrific crimes. There are even calls to abolish the Second Amendment. The purpose, however, of the following is to inform on recent developments in Second Amendment jurisprudence and local gun regulations. We will also assess the problematic reactions of society and offer some solutions as to how the troubling rash of gun violence can be addressed. There are other outlets of society that may provide us with answers and ultimately help with correcting the problem.

A. The Text of the Second Amendment and Landmark SCOTUS Cases

The text of the Second Amendment reads, “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In District of Columbia v. Heller (2008), the United States Supreme Court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. This decision is discussed in-depth here.

B. Recent Local Issues

Locally, in New Jersey and New York the issue of overly burdensome gun regulations has begun to enter focus.

New Jersey

In New Jersey, a new policy enacted by executive order 83, signed by Governor Phil Murphy states:

  • The Division of Purchase and Property is to issue a request, within 30 days, to all retail dealers or manufacturers of firearms that currently sell ammunition and/or firearms to the State to ascertain whether vendor practices, where applicable, adhere to the applicable public safety principles related to firearms listed in the order.
  • Upon receipt of information from such retailers and manufacturers, the Division of Purchase and Property shall determine whether and how to ensure that any prospective bid solicitation for ammunition and firearms include a requirement that each vendor, prior to award, certify adherence to public safety principles relating to firearms as defined in this order.
  • The Treasurer is instructed to issue a request, within 30 days, to financial institutions providing services to the Department of Treasury, or any of its divisions, offices or agencies, to disclose whether such institutions have adopted any code of conduct or principles related to gun safety or responsible sales of firearms.
  • The Commissioner of Banking and Insurance, within 30 days, is instructed to take all appropriate action within her authority to prohibit and/or limit the sale, procurement, marketing, or distribution of insurance products that may serve to encourage the improper use of firearms.

On its face, the highlights of this order seem to apply undue pressure on retailers of fire arms that sell to the state and financial institutions to demand compliance with the state government’s view of appropriate public safety principles or else face harsh punishment. The Division of Purchase and Property acts as an agency and will enforce the regulations. The agency will be the arbiter on if the retailers are following the appropriate guidelines. The financial institutions will also be forced to disclose to the state treasurer on if there was a code of conduct adopted with regard to gun safety and sale. Another government official, the Commissioner of Banking and Insurance must take action to punish developers of insurance products that encourage the improper use of firearms.

These new regulations will burden the flow of lawful firearm sales and add another layer of unnecessary bureaucracy to government contracting. As the manufacturers and financial institutions are forced to cope with the excessive regulations, this could be passed along to the consumer, reduce their productivity and be detrimental to commerce. In addition, on a local level, there may be less manufacturers that are willing to contract with the state of New Jersey or may cease doing business within the state due to costs of compliance with the bureaucratic agency regulations. This could negatively impact the New Jersey economy.

New York

New York state is legislatively working to amend the gun law at the center of a United States Supreme Court case to render it moot out of concern that the Supreme Court will take the opportunity to broaden Second Amendment rights with the case. The case is titled, New York State Rifle & Pistol Association Inc. v. City of New York, New York. The New York City gun law at issue bans transporting licensed, locked and unloaded handguns to a home or shooting range outside city limits. The specific type of New York City handgun license at issue is a premises license. This means that the handgun is registered to the dwelling and cannot be brought outside of the city limits except to authorized shooting ranges inside the city. Here, plaintiffs sought to travel to ranges outside of the city or a second dwelling outside of the city.

The Supreme Court has taken the case but has received briefing on the mootness arguments as well as briefing to proceed and clarify the standard. It will decide whether to dismiss the matter, continue with the matter, decide to narrow the ruling or broadly set a larger precedent on the standard of transporting arms.  The Supreme Court is considering constitutionality under the Second Amendment, the commerce clause and the constitutional right to travel.

It would be helpful for Constitutional clarity if the Supreme Court took the opportunity to expand on Heller and now address the transport question with regards to the personally owned and licensed home handgun. Heller set a good foundation as discussed here and the next step would logically be to invalidate further overly burdensome gun regulations incompatible with the Constitution. There is also a plausible argument, however, that the Supreme Court will choose to not address this issue now on the eve of the 2020 elections and avoid further contributing to being a center of focus during the national elections. The compromise between these two positions would be a narrow holding to leave open for further review at a later time. Oral arguments are currently scheduled for December 2, 2019 and we might be able to assess the direction of the Court on this case at that time.

C. Current National Commentary                                                                                                   

In the wake of the shootings in El Paso, TX and Dayton OH, there has been widespread reaction among the political world. Increased government oversight, background checks, red flag laws and assault weapons bans were all part of recent discussions on Capitol Hill. These shootings have sparked a renewed call for gun control across the political spectrum, but in unpacking these claims, compatibility with the Constitution and the framers vision is not a priority when aspiring politicians bring their platform to the media.

The arguably most dangerous repercussion of the new gun control enthusiasm is  subjecting the Second Amendment to partisan political demagoguery. Recently, former presidential candidate Beto O’Rourke blatantly stated in a debate that he supports a mandatory buyback program and supports the government taking enforcement action if the people do not comply. This is a startling phenomenon. As Benjamin Franklin once said “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” This puts some context  in what we are currently grappling with as a nation right now. We must reject attempts by national leaders or aspiring national leaders to take away our enumerated constitutional rights. A vigilant and informed public is necessary to stave off the dangerous ideas being put forward and retain the liberty Franklin and the Founders worked so hard to safeguard.

Furthermore, on a national scale, this wave of intrusion into the lives of business and the individual is being adopted voluntarily by some companies. In 2015, Walmart stopped the sale of military-style rifles on its premises. Now after being the site of the El Paso shooting in 2019, the corporate giant has decided it will end the sale of all military-style grade ammunition and disavow a former store policy allowing open carry in its stores. Other companies have taken similar measures, caving to public pressure. One can view these as overreactions to tragic events involving mentally disturbed and evil criminals.

Some solutions to address the problem should focus more on mental health-care and spotting troubling signs early on and whether there are a pattern of threats or hateful and unorthodox rhetoric from an individual. Support-systems also play a critical role. A healthy family environment with vigilance over the activities of the young and not having a detached parental role can be critical in mental development. In the school setting, stronger polices against bullying and legislation in states allowing for better open communication between parents, school administrators and guidance counselors when it comes to care for their children. The young need outlets to express themselves in a healthy manner with the support of a strong community. If there was more emphasis on cultivating personal relationships and self-esteem, it is likely there would be a reduction in these national tragedies. Troubleshooting early and often may reap rewards. Finally, the concept of reforming laws that reconsider the relationship between church and state would be helpful. This includes voluntary prayerful influence and education in a public-school setting to provide the opportunity for moral growth. Laws respecting this holistic approach to education were common prior to the mid-twentieth century.

Overall, the nation at the present time is sparked with debate over the Second Amendment and firearms. The Supreme Court has taken its view and the politicians have taken their view. The media has generated a lot of energy on this issue in wake of the tragedies and certain major corporations have responded accordingly. As people consider their position, they should be duly informed and look to offer solutions to keep our nation safe while preserving the rule of law.