State police arrested a man in upstate New York who lawfully possessed a registered handgun with a magazine capable of holding nine bullets — two more than a new New York law permits.
Fortunately, the district attorney says he won’t prosecute, reports the Times Union of Albany, N.Y.
But the incident highlights a vast area of undeveloped law. The Second Amendment is the last unexplored fundamental right on which lawyers have a chance to make law. Can the government infringe individuals’ Second Amendment rights? If yes, does that power rest with the federal government or with the states? And, given the absolute language of the Second Amendment, what standard of scrutiny will courts apply?
Hard as it may be to believe, the U.S. Supreme Court still has not fully resolved the issue of who possesses authority to enact any arguably reasonable restrictions on Second Amendment rights. The high court might have done so, if Congress had not let lapse a federal law restricting newly manufactured magazines to 10 rounds.
Congress let that law expire in 2004, four years before the U.S. Supreme Court finally announced in District of Columbia, et al. v. Heller that the Second Amendment’s admonition that “the right of the people to keep and bear arms shall not be infringed” actually protected both “people” and their right to “arms.”
Given that it took the high court fully 219 years after Congress proposed the Bill of Rights in 1789 to settle that question, it should come as little surprise that the courts have not yet fully resolved other basic questions:
• Exactly which people hold the right? Do some, like felons and minors, fall outside the right’s scope altogether? Or does some measure of judicial scrutiny between strict and rational basis allow restriction of the rights of some people more than others?
• What are the “arms” within the meaning of the right? Handguns, rifles, shotguns and other devises expelling inert projectiles by means of chemical propulsion? Clearly. But what about Stinger missiles?
• Are there places or times more subject to infringement, in the same way that an American’s right to speech under the First Amendment is subject to “reasonable” limitation for time, place and manner?
• And, lastly, who, as between the state and federal governments, is empowered to make these distinctions?
The Federalism Overlay
To begin, while the right to keep and bear arms applies against the federal and state government alike, it’s far from certain that it applies with the same force. Individuals may have greater rights vis-à-vis the federal government than they do against state government.
Recall that the Bill of Rights didn’t even apply to the states for the first hundred years of the republic. It was not until after the enactment of the 14th Amendment in 1868 that the Supreme Court began embracing the notion of incorporation to enforce these rights against the states.
The Constitution’s original text conveyed no specific federal authority over arms or their possession. Like the other amendments of the Bill of Rights, the Second Amendment reinforced what the Constitution’s original text left out. As written, then, the Second Amendment was a fairly blunt and direct statement against the exercise of federal power.
Congress did not, until fairly recently, understand itself to have the right to regulate firearms, under either the original text of the Constitution or the Bill of Rights. The high court agreed. In United States v. Cruikshank, the U.S. Supreme Court held in 1875 that the Second Amendment was a direct bar to such federal regulation; it was silent as to whether states had the power to regulate firearms possession.
So, the only congressional efforts to regulate firearms that are even arguably constitutional have been crammed into the commerce clause or taxing power. While the modern Supreme Court has allowed all kind of regulation under Congress’ undefined commerce power — remember Wickard v. Filburn? — it has been careful to pull back when it comes to firearms, protecting possession of a firearm and intra-state transfers of firearms.
I think that’s because the Second Amendment is an explicit statement of limited federal power. As an illustration, discussion of the “gun-show loophole” gets the issue precisely backward. The question isn’t why Congress failed to regulate; it’s why Congress believes it’s constitutionally entitled to regulate in this area at all.
So, if the federal government is uniquely out of the business of regulating the who, the what and the where of intrastate possession and transfer of firearms, who can? If the right can be infringed at all, the states are the only possible candidates, but what can they do?
From the inception of the republic, virtually all of the states had constitutional provisions assuring a right to bear arms. Still, they limited that right by, for example, excluding minors and felons from its scope.
Is such limitation constitutional? It has always seemed to me that, if the states would be free to set the voting age at 21 but for the existence of the 26th Amendment, they ought to be able to set a reasonable age of majority. On the other hand, any state effort to regulate the law-abiding, proficient adult’s right to possess an “arm” surely constitutes an “infringement” in the literal and historical sense. Right?
So, then, what of our friend in upstate New York? Should he move to Texas, or should he sue New York to bring an end to its attempt to live his life for him? Maybe both.
David Schenck is a member of Dykema Gossett. He has served as counsel to the Texas State Rifle Association and 40 other state associations in Second Amendment cases before the U.S. Supreme Court and 5th U.S. Circuit Court of Appeals.