Guns are back before the U.S. Supreme Court this term, but the cases at hand don’t target any of gun advocates’ most wanted issues.
The justices have agreed to decide two appeals involving the purchase or sale of guns that, although important to law enforcement and domestic violence victims, are unlikely to draw the high court back into debates over the scope of the Second Amendment.
Since its landmark 2008 decision in District of Columbia v. Heller, the Supreme Court has resisted a number of efforts by gun rights advocates to win review of their top priorities — restrictions involving concealed and open carrying of guns or magazine limits. That resistance has not deterred challenges to gun regulations across the country. In fact, two of the highest-profile lawsuits, stemming from mass shootings at Sandy Hook Elementary School in Newtown, Conn., and a movie theater in Aurora, Colo., are underway in federal courts and could become vehicles for the court to revisit this controversial area of the law.
Following the Newtown tragedy, the Connecticut Legislature broadened the legal definition of “assault weapon” and banned the importation, purchase or possession of large-capacity magazines (more than 10 rounds). And two lawsuits challenge recent Colorado laws that outlaw the sale or purchase of magazines holding more than 15 rounds and require universal background checks on gun buyers.
For now, however, both sides claim they are winning the gun fight in the lower courts since the 2008 Heller decision, which recognized an individual right to possess a gun in the home, and the related 2010 ruling in McDonald v. City of Chicago, which applied the Second Amendment to the states.
“For the most part, I think the lower courts have got it right post-Heller and -McDonald,” said Jonathan Lowy, director of the legal action project at the Brady Center to Prevent Gun Violence. “The gun lobby has been attempting to convince courts that the Supreme Court recognized a very broad right to carry guns everywhere, to possess military assault-style weapons. The Supreme Court simply didn’t recognize such a broad right and courts understand that.”
But veteran gun rights litigator Stephen Halbrook of the Independent Institute, who represents the challengers to the Connecticut law, countered, “Before Heller, so many federal courts said there was no individual right to have a gun in the home at all; instead, they said, it’s a collective right.” Heller and McDonald, he said, represent “incredible progress.”
WAITING FOR RIGHT CASE?
There are several reasons why the high court might not be ready to revisit Second Amendment challenges, scholar Michael O’Shea of Oklahoma City Uni­versity School of Law said. The court might be waiting for those issues to percolate through the lower courts to have the benefit of those courts’ decisions. Alternatively, “the court is waiting for an undeniable circuit split,” he said.
Most likely to produce that split, he suggested, are cases challenging restrictions on carrying guns outside of the home. Although so-called “carry” cases have reached the high court recently, the holdings in those cases “are not technically in a hard conflict.”
Pending Second Amendment challenges to carry restrictions in California and Hawaii, if successful, would create a circuit conflict with those cases recently denied review by the justices. “That would be a hard petition for the Supreme Court to turn down,” O’Shea said.
He said gun rights advocates are watching closely a petition that the justices have yet to examine but that just might capture their interest: National Rifle Association v. Bureau of Alcohol, Tobacco, Firearms and Explosives. The petition, filed by former Bush Solicitor General Paul Clement of Bancroft, is a Second Amendment and Fifth Amendment challenge to the federal law prohibiting the sale of handguns to persons younger than 21. The law is being challenged as it applies to 18- to 20-year-olds.
“What makes that an attractive petition is it was very controversial in the [U.S. Court of Appeals for the Fifth Circuit] and it goes to how does the Supreme Court want to proceed in developing Second Amendment doctrine,” O’Shea said. Do the justices want to rely on history to examine categorical bans, as in Heller, or, as the lower courts seem to be doing, to apply some form of intermediate constitutional scrutiny?
“Lawyers and others would like some guidance on how courts should decide situations that fall short of categorical bans. That’s why there would be a lot of interest in the court taking a carry case,” he said.
However, the Brady Center’s Lowy believes the justices’ refusal to revisit the Second Amendment thus far is not surprising “when you read the Heller and McDonald decisions, which both made clear that while the court recognized a right of law-abiding citizens to have a gun in the home for self-defense, virtually all other reasonable gun laws outside of a complete gun ban were constitutional.”
The two gun-related but non-Second Amendment cases that the justices will decide this term are Abramski v. United States from the Fourth Circuit and United States v. Castleman out of the Sixth Circuit. Both involve the interpretation of federal gun laws.
QUESTIONING TRANSFER OF WEAPONS
In Abramski, the court will examine who is an illegal “straw purchaser” — as opposed to the “actual buyer” of a gun under the law. Former police officer Bruce Abramski ran afoul of the law when he claimed to be an actual buyer but transferred ownership to his uncle. He argues that Congress never intended to capture legal buyers of guns who then transfer ownership to persons who themselves are legally eligible buyers.
“To make a federal felony out of this is pretty far out,” Halbrook said. “Abramski did everything right.” The government counters that federal and state restrictions on gun purchases require the firearms dealer to know the identity of the actual recipient, to determine whether the sale is legal.
James Castleman had a different problem. In 2001, he pleaded guilty to Tennessee’s crime of misdemeanor domestic assault. Eight years later, he was charged with violating the federal law prohibiting possession of a firearm by a person convicted of a misdemeanor crime of domestic violence because he was buying and selling guns on the black market.
However, the charges were dismissed because the Tennessee crime lacked as an element the use of physical force, as required under the federal law. There is a split among the federal appeals courts over the degree of force required in a state domestic assault statute for the conviction to qualify as a prohibition to gun possession under federal law.
“Both are very significant to efforts to prevent dangerous persons from getting guns,” the Brady Center’s Lowy said. “Straw purchases are one of the ways dangerous persons get guns, and it’s important that laws be forcefully enforced and interpreted. Also it’s extremely important to keep guns out of the hands of domestic violence offenders.”
Marcia Coyle can be contacted at email@example.com.