VCC Magazine Fall 2019

V irginia C apitol C onnections , F all 2019 6 chipdicks @ gentrylocke.com 804.225.5507 gentrylocke.com/chip CHIP DICKS Legislative Counsel Second Amendment from page 5 Dr. Brenda D. Long Executive Director (540) 760-2504 FAX (540) 961-4392 email brendalong73@gmail.com www.virginiaacte.org individuals). And, the Supreme Court was clear that states could pass reasonable regulations or even bans on guns or gun-related activity, without abridging the second amendment guarantees. The most significant case of the 20th century was U.S. v. Miller , which the Court decided in 1939. In this case, two men convicted of transporting a so-called sawed-off shotgun across state lines appealed their convictions on the grounds that the federal law prohibiting such transport was unconstitutional under the second amendment. The Supreme Court disagreed, writing: “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” U.S. v. Miller ’s conclusion that the Second Amendment only guaranteed an individual right to bear arms for the purpose of maintaining a well-regulated militia stood until 2008, when the Supreme Court decided a Second Amendment case for the first time in nearly 70 years. That case, District of Columbia v. Heller , overturned D.C.’s total ban on handguns and upheld the District of Columbia Circuit Court’s conclusion that “the Second Amendment protects an individual right to possess firearms and that [DC’s] total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.” Because this case arose out of the District of Columbia, it applied only to DC and other federal jurisdictions. In 2010, in the case of McDonald v. City of Chicago —a case that was filed on the same day that the Court handed down the Heller decision—the Court extended the individual right to bear arms to all citizens by striking down state- and city-level bans on firearms. New York State Rifle & Pistol Association, Inc., et al. v. The City of New York and the New York City Police Department-License Division The Court has not heard another Second Amendment case since 2010’s McDonald decision. In late Spring 2019, however, the Court signaled its intention to hear the New York State Rifle and Pistol Association case during the October 2019 term. This case, which challenges a New York City ordinance prohibiting people with so-called “premises” license to own a gun in their home from transporting that gun outside of city limits, even to places like a second home or to a gun range. In essence, the Supreme Court is being asked to acknowledge that not only is there an individual right to keep arms, but also to acknowledge that there is an individual right to bear arms. Interestingly, the case is now moot; following the Court’s decision to agree to hear the case, both New York City and New York state changed their firearms laws to allow an individual who is legally permitted to own a gun to transport that gun anywhere that he or she is legally permitted to possess it. Under the Supreme Court’s own rules relating to hearing cases, there is an argument to be made that the Court should now refuse to hear this case, since the parties bringing the case have now achieved the result they were looking for via state and local legislative processes. Indeed, the Court will consider that argument at its October 1, 2019 conference; it may decide to rescind its decision to hear the case then. If it does not do so, the case is scheduled for oral argument on December 2, 2019. Conclusion Embedded in its 2008 Heller decision was a signal from the Supreme Court to policymakers that changes to gun laws need to come via legislative solutions, not judicial ones. The Court clarified that nothing in our opinion should 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, or laws imposing conditions and qualifications on the commercial sale of arms. We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’ The Court ultimately concluded in Heller that “[t]he Constitution [provides] a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” As the Virginia General Assembly’s 2019 abbreviated special session on gun violence indicates, there does not seem to be significant appetite among legislators at least inVirginia—but likely not in toomany other places either—to tackle the thorny issues alluded to by the Court more than a decade ago. And with little in either the legislative history of the Second Amendment or in the Supreme Court’s jurisprudence to offer a definitive conclusion about what theAmendment means, or what it protects, it is likely that this is an area of the law that will continue to be a challenge for legislators and judges alike. Lauren C. Bell is Dean of Academic Affairs and Professor of Political Science at Randolph Macon College. Editor’s Note: Some of the spellings in this piece reflect the original spelling of the words at the time the documents were written. V