Chapter 4
Court Rulings on Firearms

The U.S. Constitution and most state constitutions guarantee the right to bear arms, but the courts have ruled that this right may be strictly controlled. Many laws and regulations have been enacted at the local, state, and federal levels to regulate firearms. When these laws have been challenged, state and federal courts have consistently upheld the right of governments to require the registration of firearms, to determine how these weapons may be carried, and even to forbid the sale or use of some weapons under certain circumstances. Courts have also been asked to decide if manufacturers, dealers, or sometimes even relatives of the gun carrier should be held responsible when guns are used to commit crimes.

It is generally accepted that gun ownership will be denied to convicted felons, individuals who are not of sound mind, and individuals regarded as incapable due to a mental condition. However, restrictions such as these have also been challenged in court. The following selection of court cases includes landmark decisions and more recent rulings on gun rights and regulations at the federal, state, and local levels.

SECOND AMENDMENT INTERPRETATIONS

The Bill of Rights: Federal versus State Protections

The “right of the people to keep and bear arms” is the essence of the Second Amendment, which is part of the Bill of Rights (ratified 1791) to the U.S. Constitution. For many years, when deciding cases based on any guarantee granted by the Bill of Rights, including the Second Amendment, the courts relied on the 1833 U.S. Supreme Court decision in Baron v. Mayor of Baltimore (32 U.S. 243). In that case the Court ruled that the Bill of Rights does not apply to or restrict the states. This meant that the Bill of Rights was a limitation to the federal government only; its protections applied to federal laws.

Under this interpretation, a state did not have to allow people “to keep and bear arms” unless the state's constitution guaranteed that right. If the state constitution did not ensure that right, then state or local authorities could arrest a person possessing a firearm; however, federal law enforcement officials could not because of the Bill of Rights. Thus, state constitutions—rather than the Second Amendment of the U.S. Constitution—decided most gun cases. However, this situation changed during the years of Chief Justice Earl Warren (1891–1974). Warren was the chief justice from 1953 to 1969, when most of the guarantees of the Bill of Rights were held to apply to the states through the Fourteenth Amendment, which states, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens.’

The Individual Rights Interpretation versus the Collective Rights Interpretation

Gun rights advocates interpret the Second Amendment as a guarantee to individuals of the right to keep and bear arms without governmental interference. In The Supreme Court's Thirty-five Other Second Amendment Cases: What the Supreme Court Has Said about the Second Amendment (1999, http://www.davekopel.com/2a/lawrev/35finalpartone.htm), David B. Kopel of the Independence Institute in Golden, Colorado, concludes that the Supreme Court has generally agreed with this interpretation. He states, “The dispute about whether the Second Amendment guarantees an individual right can be pretty well settled by looking at the thirty-five other Supreme Court cases which quote, cite, or discuss the Second Amendment. These cases suggest that the Justices of the Supreme Court do now and usually have regarded the Second Amendment “right of the people to keep and bear arms” as an individual right, rather than as a right of state governments.” Kopel stands by this interpretation in his recent writings, such as in “The Human Right of Self-Defense” (BYU Journal of Public Law, vol. 22, 2008).

Opponents of this individual rights interpretation say the right to bear arms is a collective right that pertains to militias. The American Bar Association, in “Special Committee on Gun Violence: Second Amendment Issues” (October 19, 2006, http://www.abanet.org/gunviol/secondamendmentissues/home.shtml), takes the position that when the Supreme Court and other federal courts have addressed the Second Amendment, they:

Have consistently interpreted this Amendment only as a prohibition against Federal interference with State militia and not as a guarantee of an individual's right to keep or carry firearms. The argument that the Second Amendment prohibits all State or Federal regulation of citizen's ownership of firearms has no validity whatsoever.

The controversy over the meaning of the Second Amendment exists only in the public debate over gun control. Few issues have been more distorted and cluttered by misinformation than this one. There is no confusion in the law itself. The strictest gun control laws in the nation have been upheld against Second Amendment challenge, including local bans on handguns.

FEDERAL COURT CASES

United States v. Cruikshank: Right to Bear Arms?

The first major federal case dealing with the Second Amendment was United States v. Cruikshank (92 U.S. 542 [1876]). The defendants, who were members of the white supremacist group known as the Ku Klux Klan, were convicted under the Enforcement Act of 1870 of conspiracy to deprive two African-American men of their right of assembly and free speech and their right to keep and bear arms as guaranteed by the First and Second Amendments of the U.S. Constitution. The Court ruled, ““Bearing arms for a lawful purpose.” This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this… means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.’

In this ruling the Court agreed with a lower court ruling that the right to keep and bear arms is a birthright. It is not a right created or conferred by the Constitution. The Constitution, however, guarantees that this right shall not be impaired by the state or federal government. In addition, it is the duty of the state to protect and enforce this right.

United States v. Miller: Possession of Gangster-Type Weapons

In the twentieth century the Supreme Court first tackled the Second Amendment in a case involving a violation of the National Firearms Act of 1934, a federal law designed to make it more difficult to acquire especially dangerous “gangster-type” weapons. Jack Miller and Frank Layton were arrested by federal agents in 1938 and charged with traveling with an unregistered, gangster-style, double-barreled, sawed-off, twelve-gauge shotgun. A federal district court judge dismissed the case on the grounds that the National Firearms Act violated the Second Amendment. The U.S. government appealed to the Supreme Court in United States v. Miller (307 U.S. 174 [1939]).

The federal government argued that if the Second Amendment protected an individual's right to keep and bear arms, the only arms protected were those suitable to military purposes, not weapons such as sawed-off shotguns that “constitute the arsenal of the “public enemy” and the “gangster”—weapons that the National Firearms Act was intended to regulate.

The Supreme Court reversed the lower court's ruling and upheld the federal law. Because Miller had fled and did not appear to plead his case, the Court heard only the government's side of the issue and did not hear a strong argument for permitting a citizen to maintain such a weapon. In the end, the Supreme Court denied Miller the right to carry a sawed-off shotgun, noting that no evidence had been presented as to the usefulness “at this time” of a sawed-off shotgun for military purposes. The Court stated, “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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.’

Referring back to the debates of the Constitutional Convention and the discussion of the militia, the Court observed that such deliberations showed “plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense, “A body of citizens enrolled for military discipline.” And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.’

Miller remains the major Supreme Court ruling and precedent concerning gun control, but what did the Court mean in Miller ? The ruling has been used to support both sides of the gun rights debate. Was the Court protecting an individual's right to bear arms or not? Do those arms have to have some military usefulness? The sawed-off shotgun was used in Vietnam as an effective military weapon. Does this mean that it can be shown to contribute to the common defense in modern times? What of the machine gun, which as of June 2008 was forbidden under

federal law but has also been used in war? Could that weapon, too, be considered as potentially helpful to the common defense? Should Americans be allowed to bear machine guns? Gun control advocates say the Court's decision in Miller allows the reasonable regulation of firearms and that the Second Amendment right applies only to people on active duty in official state militias.

USING MILLER AS A PRECEDENT . The case of United States v. Tot (131 F.2d 261 [1942]) originated in the arrest of Frank Tot for stealing cigarettes from an interstate shipment. Tot had previously been convicted of a crime of violence. At the time of his arrest, a.32-caliber Colt automatic pistol was seized during a search of his home. The Third Circuit Court of Appeals did not accept Tot's argument that the Second Amendment prohibited the state of New Jersey from denying him the right to own a gun even if he was a convicted felon. Citing Miller as a precedent, the circuit court reasoned that “one could hardly argue seriously that a limitation upon the privilege of possessing weapons was unconstitutional when applied to a mental patient of the maniac type. The same would be true if the possessor were a child of immature years…. Congress has prohibited the receipt of weapons from interstate transactions by persons who have previously, by due process of law, been shown to be aggressors against society. Such a classification is entirely reasonable and does not infringe upon the preservation of the well regulated militia protected by the Second Amendment.’

The circuit court noted that the Second Amendment, “unlike those providing for protection of free speech and freedom of religion, was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power.’

In 1942 the First Circuit Court of Appeals cited Miller in Cases v. United States (131 F.2d 916) in an attempt to uphold the Federal Firearms Act of 1938. Jose Cases Velazquez had been convicted of a violent crime and, under the federal law, could not own a gun. The circuit court observed, “The Federal Firearms Act undoubtedly curtails to some extent the right of individuals to keep and bear arms…. [This] is not a right conferred upon the people by the federal constitution.’

These rulings (Tot and Cases ) and others were consistent with the thinking in Miller. Furthermore, they expanded on Miller by disagreeing with the argument of gun rights advocates that the Second Amendment extends firearms rights to individuals independent of the need to ensure a well-regulated militia.

Miller is also cited in the Fifth Circuit Court of Appeals decision for U.S. v. Emerson (270 F.3d 203 [2001]). In this case Timothy Joe Emerson was charged with violating the Lautenberg Amendment to the 1994 Gun Act, which prohibits possession of a firearm by people under a domestic violence restraining order. Emerson's estranged wife had obtained such an order from a judge in 1998, after Emerson had acknowledged his mental instability. He was subsequently indicted for illegally possessing two 9mm pistols, a semiautomatic SKS assault rifle with bayonet, a semiautomatic M-14 assault rifle, and an M1 carbine. At his trial in district court, his lawyers argued that the case should be dismissed on the grounds that the federal ban on gun possession by those under a protective order for domestic violence violated the Second Amendment. The district judge sided with Emerson and dismissed the charges, reasoning that the provision of the 1994 law violates the Second Amendment because it allows a state court divorce proceeding to deprive a citizen of his right to keep and bear arms, even when that citizen has not been found guilty of anything.

In Emerson the court was interpreting the Second Amendment as conferring individual rights on U.S. citizens. However, U.S. Department of Justice (DOJ) prosecutors appealed the trial court's decision, stating that it directly conflicted with the long-established legal precedent (the collective rights interpretation) laid down by the Supreme Court in Miller.

When the Fifth Circuit Court of Appeals reversed the lower court decision and upheld the domestic violence gun ban against Emerson, gun control advocates viewed the decision as a victory for domestic violence victims and a safeguard for women across the country. Gun rights advocates also found something to praise in the decision, as it seemed to provide support for the argument that individuals are guaranteed the right under the U.S. Constitution to bear arms independent of the provision of a well-regulated militia. The decision of the court stated, “We conclude that Miller does not support the government's collective rights or sophisticated collective rights approach to the Second Amendment. Indeed, to the extent that Miller sheds light on the matter it cuts against the government's position.’

The Emerson case sparked conflicting views of the Second Amendment within the DOJ. In arguing the government's case in Emerson, the DOJ contended that it is “well settled” that the Second Amendment creates a right held by the states and does not protect an individual's right to bear arms. When Emerson filed his brief on appeal, he attached a copy of a letter from the U.S. attorney general John D. Ashcroft (1942–) to the National Rifle Association of America dated May 17, 2001. The letter stated in part, “Let me state unequivocally my view that the text and the original intent of the Second Amendment clearly protects the right of individuals to keep and bear firearms.”

Emerson was quickly seized on by gun rights advocates. In 2000 California attorney Gary Gorski filed a lawsuit in the Eastern District Court. The case, Silveira v. Lockyer (312 F.3d 1052), sought to overturn California's ban on semiautomatic rifles on the basis of the individual right of a person to keep and bear arms under the Second Amendment. The Silveira lawsuit lost in the Eastern District Court and was appealed to the Ninth Circuit Court in 2002, which upheld the lower court's decision. The Ninth Circuit Court's written decision strongly rejected the reasoning behind the Emerson decision, stating the “the debates of the founding era demonstrate that the second of the first 10 amendments to the Constitution was included in order to preserve the efficacy of the state militias for the people's defense—not to ensure an individual right to possess weapons.’

Silveira has been viewed by some observers as a significant setback for gun rights advocates.

District of Columbia v. Heller: The Constitutionality of the District of Columbia's Handgun Ban

In 2008 the Supreme Court was once again confronted with making a decision that hinged on the Second Amendment and would issue its first decision interpreting the Second Amendment since the 1939 Miller decision. This time the interpretation was in the context of the District of Columbia's ban on the possession of handguns. The High Court was expected to make a landmark ruling on the centuries-old question of whether the Constitution's Second Amendment refers to an individual's right to gun ownership or strictly to militia service.

In 1976 the District of Columbia passed a law that banned the private possession of handguns and that required rifles and shotguns in the home to be outfitted with a trigger lock or kept unloaded and disassembled. Dick Anthony Heller was the named party in the suit, but the attorney Robert A. Levy personally financed the lawsuit and worked on bringing it to the Supreme Court with the purpose of addressing the Second Amendment “question.” Attorneys for the District of Columbia contended the Second Amendment does not give individuals the right to bear arms, whereas Levy and the other attorneys for Heller contended it does.

In 2007 a three-judge panel of the U.S. Court of Appeals for the District of Columbia struck down the gun control ordinance on Second Amendment grounds. Senior Judge Laurence H. Silberman (1935–) wrote for the two-to-one majority that the amendment provides an individual right just as other provisions of the Bill of Rights do. Handguns fall under the definition of “arms’; thus, the District of Columbia may not ban them.

The District of Columbia appealed the case, District of Columbia v. Heller (No. 07-290), to the Supreme Court. The High Court heard arguments in March 2008 and rendered its decision in late June 2008. The 5–4 landmark ruling interpreted the Second Amendment as protecting the individual's right to own a gun, thus supporting the 2007 decision of the U.S. Court of Appeals for the District of Columbia. Even though Washington, D.C.'s handgun ban will have to be revised in light of the Supreme Court ruling because it is a nearly complete ban, most state and city restrictions appear to be allowed. The majority opinion, written by Justice Antonin Scalia (1936–), provided for gun control legislation by noting that “like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Justice John Paul Stevens (1920–), writing for the minority (dissenting) opinion, noted, “The Court's announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations.’

United States v. Synnes: Gun Possession by a Convicted Felon

In United States v. Synnes (438 F.2d 764 [1971]), another case involving the possession of a firearm by a convicted felon, the Eighth Circuit Court of Appeals said this about the Second Amendment, “We see no conflict between [a law prohibiting the possession of guns by convicted criminals] and the Second Amendment since there is no showing that prohibiting possession of firearms by felons obstructs the maintenance of a “well-regulated militia.”

Most supporters of handgun possession have accepted the right of federal and state governments to deny weapons to former felons, drug abusers, and mentally disabled individuals.

United States v. Warin: Possession of a Machine Gun

The next round of court challenges came after passage of the Gun Control Act of 1968. The defendant Francis J. Warin appealed his conviction for possessing an unlicensed submachine gun in United States v. Warin (530 F.2d 103 [1976]). Warin tried to convince the Sixth Circuit Court of Appeals that a federal law prohibiting the possession of the gun violated his Second Amendment rights. The court upheld Warin's conviction, stating that it is an “erroneous supposition that the Second Amendment is concerned with the rights of individuals rather than those of the States.’

Smith v. United States: Enhanced Penalties for “Use” of Firearms in a Drug Crime

The Supreme Court ruled in Smith v. United States (508 U.S. 223 [1993]) that the federal law authorizing stiffer penalties if the defendant “during and in relation to… [a] drug trafficking crime uses… a firearm” applies

not only to the use of firearms as weapons but also to firearms used as commerce, such as in a bartering or trading transaction. John Angus Smith and a companion went from Tennessee to Florida to buy cocaine, which they planned to resell for profit. During a drug transaction, an undercover agent posing as a pawnshop dealer examined Smith's MAC-10, a small, compact, lightweight firearm that can be equipped with a silencer and is popular among criminals. Smith told the agent he could have the gun in exchange for two ounces of cocaine. The officer said he would try to get the drugs and return in an hour. In the meantime Smith became suspicious and fled, and after a high-speed chase officers apprehended him.

A grand jury was convened to decide whether there was enough evidence to justify formal charges and a trial. Smith was charged with drug-trafficking crimes and with knowingly using the MAC-10 in connection with a drug-trafficking crime, among other offenses. Under 18 U.S.C. Section 924(c)(1)k, a defendant who uses a firearm in such a way must be sentenced to five years” imprisonment, and if the “firearm is a machine gun or is equipped with a firearm silencer,” as it was in this case, the sentence is thirty years. Smith was convicted on all counts.

On appeal Smith argued that the law applied only if the firearm was used as a weapon. The Eleventh Circuit Court disagreed, ruling that the federal legislation did not require that the firearm be used as a weapon—“any use of “the weapon to facilitate in any manner the commission of the offense” suffices.” In a similar case, United States v. Harris (959 F.2d 246 [1992]), the Court of Appeals for the District of Columbia Circuit had arrived at the same conclusion. By contrast, the Court of Appeals for the Ninth Circuit held in United States v. Phelps (877F.2d 28 [1989]) that trading a gun in a drug-related transaction was not “using” it within the meaning of the statute. To resolve the conflict among the different circuit courts, the Supreme Court heard Smith's appeal.

In a six-to-three decision, the Court ruled in Smith v. United States that the “exchange of a gun for narcotics constitutes “use” of a firearm “during and in relation to…[a] drug trafficking crime” within the meaning” of the federal statute. Delivering the opinion of the majority, Justice Sandra Day O’Connor (1930–) wrote that “when a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning.” Definitions for the word use from various dictionaries and Black's Law Dictionary show the word to mean “convert to one's service; to employ; to carry out a purpose or action by means of.” In trying to exchange his MAC-10 for drugs, the defendant “used” or employed the gun as an item of trade to obtain drugs. The phrase “as a weapon” does not appear in the statute. O’Connor reasoned that if Congress had meant the narrow interpretation of “use” (as a weapon only), it would have worded the statute differently.

Justice Scalia dissented from the majority's definition of “use.” Defining the normal usage of a gun as discharging, brandishing, or using as a weapon, he observed:

The Court does not appear to grasp the distinction between how a word can be used and how it ordinarily is used. It would, indeed, be “both reasonable and normal to say that petitioner “used” his MAC-10 in his drug trafficking offense by trading it for cocaine.’… It would also be reasonable and normal to say that he “used” it to scratch his head. When one wishes to describe the action of employing the instrument of a firearm for such unusual purposes, “use” is assuredly a verb one could select. But that says nothing about whether the ordinary meaning of the phrase “uses a firearm” embraces such extraordinary employments. It is unquestionably not reasonable and normal, I think, to say simply “do not use firearms” when one means to prohibit selling or scratching with them.

Bailey v. United States: New Interpretations of “Use’

In 1995 the Supreme Court narrowed the definition of “use” that had been established in Smith.In Bailey v. United States (516 U.S. 137), the Supreme Court considered the separate criminal misdeeds of Roland J. Bailey and Candisha Robinson.

In 1988 Bailey had been stopped in his car by Washington, D.C., police officers because he was missing a front license plate and an inspection sticker. When Bailey could not produce a driver's license, an officer searched Bailey's car and found ammunition and thirty grams of cocaine. Another officer found a loaded pistol and more than $3,200 in small bills in the trunk. At his trial, Bailey was convicted of possession of cocaine with intent to deliver and using or carrying a firearm in connection with a drug offense. He appealed to the Court of Appeals for the District of Columbia Circuit.

In June 1991 Larry Hale, an undercover police officer in the process of buying drugs, saw Candisha Robinson handing crack cocaine to another person. In the same room the person who took the cocaine from Robinson sold the drug to the officer, who paid for it with $20 in marked money. Later, while executing a search warrant on Robinson's apartment, officers found a.22-caliber derringer, two rocks of crack cocaine, and the marked money. Robinson was found guilty of cocaine distribution, and, among other things, the use or carrying of a firearm during and in relation to a drug-trafficking offense. She appealed to the Court of Appeals for the District of Columbia Circuit.

In Bailey's appeal, United States v. Bailey (995 F. 2d 1113 [CADC 1993]), the defense argued there was no evidence that he had used the gun in connection with a drug offense. Robinson argued in her appeal, United

States v. Robinson (997 F. 2d 884 [CADC 1993]), that during the drug sale to the officer, the gun was unloaded and in a locked trunk and was not used in the commission of or in relation to a drug-trafficking offense.

The court of appeals rejected Bailey's claim of insufficient evidence and held that he could be convicted for “using” a firearm if the jury could reasonably infer that the gun had assisted in the commission of a drug offense. In Robinson's case the court reversed her conviction for “using or carrying,” because the presence of an unloaded gun in a locked trunk in a bedroom closet was not evidence of actual use. Because the decisions were contradictory, the court of appeals consolidated the two cases and reheard them. A majority of the judges then found that there was sufficient evidence to establish that each defendant had used a firearm in relation to a drug trafficking offense. Bailey and Robinson then jointly appealed to the Supreme Court, which granted their petition to clarify the meaning of “use.’

In December 1995 the Supreme Court unanimously held that to establish “use,” the government must show that the defendant actively employed a firearm so as to make it an “operative factor in relation to the predicate offense.” This definition includes hiding a gun in a shirt or pants, threatening to use a gun, or actually using the gun during the commission of a drug crime. The Court also found that Bailey's and Robinson's “use” convictions could not be supported because the evidence did not indicate that either defendant actively employed firearms during drug crimes.

In 1998 the Supreme Court put a much broader interpretation on the federal law, which mandates a five-year prison term for a person who “uses or carries” a gun “during and in relation to” a drug-trafficking crime. The three defendants in this case carried guns in the trunks of their cars. The Court ruled in United States v. Muscarello (118 S.Ct. 1911) that having a gun in a car from which a person is dealing drugs fits the meaning of “carries” for purposes of the sentencing statutes.

United States v. Lopez: Possession of a Firearm near a School

The Gun-Free School Zones Act of 1990 made it unlawful for any individual to knowingly possess a firearm in a school zone, defined as within 1,000 feet (305m) of school grounds, regardless of whether school was in session. Two federal appeals courts came to different conclusions about the constitutionality of the act.

FIFTH CIRCUIT COURT OF APPEALS: THE GUN-FREE SCHOOL ZONES ACT IS UNCONSTITUTIONAL. The U.S. Court of Appeals for the Fifth Circuit ruled in United States v. Lopez (2 F.3d 1342 [1993]) that Congress had exceeded the power granted to it under the commerce clause of the U.S. Constitution when it enacted the Gun-Free School Zones Act. The commerce clause gives Congress the power to regulate conduct that crosses state borders. According to the court, with few specific exceptions, “federal laws proscribing firearm possession require the government to prove a connection to commerce.” Congress had made no attempt to link the Gun-Free School Zones Act to commerce in the debates before the law was enacted and in the law itself. The appeals court asserted:

Both the management of education, and the general control of simple firearms possession by ordinary citizens, have traditionally been a state responsibility…. We are unwilling to… simply assume that the concededly intrastate conduct of mere possession by any person of any firearm substantially affects interstate commerce, or the regulation thereof, whenever it occurs, or even most of the time that it occurs, within 1,000 feet of the grounds of any school whether or not then in session. If Congress can thus bar firearms possession because of such a nexus [connection] to the grounds of any public or private school, and can do so without supportive findings or legislative history, on the theory that education affects commerce, then it could also similarly ban lead pencils, “sneakers,” Game Boys, or slide rules.

Following this reasoning, the appeals court found the Gun-Free School Zones Act unconstitutional.

NINTH CIRCUIT COURT OF APPEALS: THE GUN-FREE SCHOOL ZONES ACT IS CONSTITUTIONAL. By contrast, the U.S. Court of Appeals for the Ninth Circuit ruled in United States v. Edwards (13 F.3d 291 [1993]) that the commerce clause of the Constitution did, indeed, give Congress the power to pass such a law as the Gun-Free School Zones Act. In 1991 Sacramento police officers and school officials approached Ray Harold Edwards III and four other males at Grant Union High School. The officers discovered a.22-caliber rifle and a sawed-off bolt-action rifle in the trunk of Edwards's car. One of the charges against Edwards was violation of the Gun-Free School Zones Act.

Edwards appealed, claiming the law violated the Tenth Amendment because Congress did not have the authority under the commerce clause or any other delegated power to enact the Gun-Free School Zones Act. The Tenth Amendment states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’

Disagreeing with United States v. Lopez, the court of appeals ruled that the Gun-Free School Zones Act “does not expressly require the Government to establish a nexus between the possession of a firearm in a school zone and interstate commerce…. It is unnecessary for Congress to make express findings that a particular activity or class of activities affects interstate commerce in order to exercise its legislative authority pursuant to the commerce clause.’

The judges used as a precedent a case upholding legislation making it illegal to possess an unregistered machine gun. In that case the appeals court ruled that “violence created through the possession of firearms adversely affects the national economy, and consequently, it was reasonable for Congress to regulate the possession of firearms pursuant to the commerce clause.’

THE U.S. SUPREME COURT: THE GUN-FREE SCHOOL ZONES ACT IS UNCONSTITUTIONAL. In 1995 the Supreme Court struck down the Gun-Free Schools Zone Act in United States v. Lopez (514 U.S. 549) on the grounds that Congress had overstepped its bounds because it had based the law on the commerce clause of the U.S. Constitution. The commerce clause empowers Congress to regulate interstate commerce, but Congress had failed to connect gun-free school zones with commerce. Chief Justice William H. Rehnquist (1924–2005) wrote that Congress had used the commerce clause as a general police power in a way that is generally retained by states. He also warned that the Gun-Free School Zones Act “is a criminal statute that by its terms has nothing to do with “commerce” or any sort of economic enterprise, however broadly one might define those terms…. If we were to accept the Government's arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate.’

Congress responded in 1996 by approving a slightly revised version of the Gun-Free School Zones Act in the form of amendments to the Department of Defense Appropriations Act of 1997. The amendments required prosecutors to prove an impact on interstate commerce as an element of the offense.

Printz v. United States: The Constitutionality of the Brady Law

Opponents of the Brady Handgun Violence Prevention Act of 1993 challenged its constitutionality soon after it passed. Under the Brady law, Congress had ordered local chief law enforcement officials nationwide to conduct background checks on prospective handgun purchasers who bought their guns through federally licensed dealers. Two sheriffs, Jay Printz of Ravalli County, Montana, and Richard Mack of Graham County, Arizona, charged that Congress exceeded its powers under the Tenth Amendment of the U.S. Constitution, which defines the separation of powers—the relationship between the federal government and the sovereign powers of the individual states. They argued that the federal government had placed federal burdens on local police agencies with no federal compensation. Representing the federal government, Acting Solicitor General Walter E. Dellinger III (1941–) argued that the government had the right to require local agencies to carry out federal orders as long as those agencies were not forced to make policy.

In Printz v. United States (521 U.S. 898 [1997]), the Supreme Court struck down the Brady law provisions that required local chief law enforcement officials to conduct background checks on prospective handgun buyers and to accept the form on which that background check is based. The Court declared that these provisions violated the Tenth Amendment to the U.S. Constitution. Justice Scalia wrote, “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States” officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.’

The Court unanimously upheld the Brady law's five-day waiting period for handgun purchases, because the waiting period was directed at gun store owners and was not a federal mandate to state officials. Most chief law enforcement officers continued to conduct background checks voluntarily until the National Instant Check System, which was instituted by the Brady law, became effective in November 1998.

Bryan v. United States: Selling Guns without a License

The Firearms Owners” Protection Act of 1986 prohibits any person other than a licensed dealer from dealing in firearms. Anyone who “willfully violates” this law is subject to a fine and can be sentenced up to five years in prison. Sillasse Bryan bought several pistols in Ohio, using “straw purchasers” (legally qualified buyers who purchase for someone who is not legally qualified). After filing the serial numbers off the guns, he resold the weapons in New York City, in areas known for drug dealing. At his trial the defense argued that Bryan could be convicted only if he knew of the specific federal licensing requirement of the law. His argument failed and Bryan was convicted. In Bryan v. United States (524 U.S. 184 [1998]), the Supreme Court interpreted “willfully violates” to mean that the defendant only needs to know that he was selling guns illegally. Bryan's conviction was upheld.

United States v. Bean: Federal Guns-for-Felons Program

According to the Supreme Court ruling in United States v. Bean (537 U.S. 71 [2002]), courts cannot restore firearm privileges to anyone convicted of a felony. In this case Thomas Lamar Bean, a registered gun dealer in Texas, drove to Mexico for dinner with his associates one night after a gun show in 1998. Even though he had asked one of his associates to remove the firearms and ammunition from his car, the Mexican police found one box of ammunition remaining inside. Bean was convicted of importing ammunition to Mexico, which is a felony. As a result of his conviction, he was subsequently barred from “possessing, receiving, or distributing firearms or ammunition” in the United States. However, under Title 18, Section 925(c), Bean was allowed to petition

the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) for reinstatement of his gun privileges, known as the guns-for-felons program. The ATF turned him down, stating that it had no money to process his application after the 1992 Appropriations Act passed by Congress had barred the ATF from spending money on such activities. Bean filed suit in the U.S. District Court in Texas, which decided to lift his prohibition. The Fifth Circuit Court of Appeals affirmed that decision.

In 2002 the Supreme Court rejected Bean's contention that the ATF's failure to act amounted to a de facto (existing in reality whether with lawful authority or not) denial of his application. In the decision, Justice Clarence Thomas (1948–) stated that “mere inaction by ATF does not invest a district court with independent jurisdiction to act on an application.” The Court also ruled unanimously that the federal “relief from disabilities” guns-for-felons program could not be revived by federal judges. Under the “relief from disabilities” program, convicted felons were given the right to apply for “relief” from the “disability” of not being able to buy or possess a gun. The Supreme Court did not comment on Bean's claim that he had a Second Amendment right to get his guns back.

United States v. Stewart: Possession of Homemade Machine Guns

Robert Wilson Stewart Jr. was a convicted felon who sold parts kits to make Maadi-Griffin.50 caliber rifles. He advertised the kits on the Internet and in magazines. The ATF began to investigate Stewart when it realized that he had a prior conviction for the possession and transfer of a machine gun. During the investigation an ATF agent purchased parts kits from Stewart and determined that they could be used to make an unlawful firearm. After obtaining a warrant, the ATF searched Stewart's residence and discovered thirty-one firearms, including five machine guns that Stewart had machined and assembled. Stewart was convicted of being a felon in possession of a firearm, of unlawful possession of a machine gun, and of possessing several unregistered, homemade machine guns.

The case against Stewart had been based, in part, on an interpretation of the commerce clause of the U.S. Constitution that prohibits anyone except a licensed importer, manufacturer, or dealer of firearms to import, manufacture, or deal in firearms. In his appeal, Stewart claimed that Congress had exceeded its commerce clause power and violated the Second Amendment.

In United States v. Stewart (348 F.3d 1132 [2003]), the Ninth Circuit Court of Appeals overturned the lower court's ruling on violating the commerce clause, saying that Stewart did not have a substantial effect on interstate commerce. However, the federal court affirmed his conviction for being a felon in possession of a firearm.

In 2005 the DOJ appealed the case to the Supreme Court. The High Court would not hear the case but instructed the Ninth Circuit Court of Appeals to further consider the case in light of its recent ruling in Gonzales v. Raich (545 U.S. 1 [2005]). That case allowed Congress to use the commerce clause to ban the cultivation and possession of homegrown marijuana for personal medical use because, the Court said, the marijuana could affect the supply and demand of the drug, thereby affecting interstate commerce. In June 2006 the Ninth Circuit Court of Appeals ruled that Congress has the power to regulate the sales of homemade machine guns because they can enter the interstate market and affect supply and demand. Thus, Congress had not exceeded its commerce clause power and had not violated the Second Amendment.

STATE LAWS

Most state constitutions guarantee the right to bear arms, and this right has either been enacted or strengthened in more than a dozen states since 1970 (see the Appendix). Some states clearly tie this right to the militia, whereas other state constitutions and courts have ruled from the perspective of personal defense or self-protection. Two classic examples of cases involving self-defense are Schubert v. DeBard (398 NE.2d 1339 [1980]) and State v. Kessler (614 P.2d 94 [1980]).

Schubert v. DeBard: The Right to Possess a Handgun for Self-Defense Protected in Indiana

Joseph L. Schubert Jr. wanted a handgun to protect himself from his brother, who he believed was mailing him anonymous threats. Indiana law required that “a person desiring a license to carry a handgun shall apply to the chief of police or corresponding police officer’— in this case Robert L. DeBard, the superintendent of the Indiana State Police. The resulting investigation by DeBard's office found what it considered to be evidence that Schubert was mentally unstable and denied his request. When his application was denied, Schubert filed a petition for review.

Schubert's defense attorney accepted the conclusion of the police investigation that Schubert had some psychological problems but argued that they were irrelevant to the matter at hand. Article 1, Section 32, of the Indiana constitution guarantees that “the people shall have a right to bear arms, for the defense of themselves and the State.” Therefore, the attorney argued, when self-defense was properly indicated as the reason for desiring a firearms license, and the applicant was otherwise qualified, the license could not be withheld because an administrative official had subjectively determined that the applicant's need to defend himself was not justified. (At that point, no one had claimed Schubert was mentally incompetent, which is an accepted reason to deny permission to carry a gun.)

The Third District Court of Appeals of the State of Indiana agreed with Schubert. After studying the debates surrounding the creation of the Indiana constitution in 1850, most of the appeals court judges concluded, “We think it clear that our constitution provides our citizenry the right to bear arms for their self-defense.” If it were left to a police official to determine a “proper reason” for a person to claim self-defense, “it would supplant a right with a mere administrative privilege.” Based on this conclusion, the court sent the case back to the lower court, asking it to determine if Schubert was mentally incompetent, which was an accepted basis for denying him the right to purchase a weapon.

State v. Kessler: The Right to Possess Small Weapons for Self-Defense Protected in Oregon

The Oregon constitution is identical to that of Indiana concerning the possession of weapons. Randy Kessler had an argument with his apartment manager, which escalated into name-calling, swearing, and the throwing of objects. The police were called and Kessler was arrested. He asked the police to get his coat from his apartment. While retrieving Kessler's coat, police officers found two “billy clubs” in the apartment. They charged Kessler with disorderly conduct and possession of a “slugging weapon.’

After studying the history of the Indiana constitution, on which the Oregon constitution was partly based, and the Schubert v. DeBard decision of 1980, the Oregon Supreme Court found that a state regulation forbidding ownership of the billy clubs was unconstitutional. Noting that the term arms applied to hand-carried weapons such as muskets, knives, swords, and so forth and not to “cannon or other heavy ordnance,” the court upheld Kessler's (state) constitutional right to possess a billy club—“the first personal weapon fashioned by humans’—or any other type of small weapon for his self-defense. Four years later the state of Oregon extended the same protection to switchblade knives in State v. Delgado (298 Or. 395 [1984]).

Doe v. Portland Housing Authority: Maine State Law Preempts the Portland Public Housing Authority Provision against Gun Possession

Most state constitutions guarantee the right to bear arms, but state laws regulate their possession. The case of Doe v. Portland Housing Authority is an example of such regulation and its preemption (taking precedence) of a public housing authority provision.

A Maine couple identified as John and Jane Doe, who had lived in public housing since 1981, were threatened with eviction after the Portland Housing Authority (PHA) in Maine discovered guns in their apartment. John Doe was a veteran of the U.S. Marine Corps, a former firearms dealer, and a licensed hunter. Jane Doe, a target shooter, reported that she kept a handgun for self-protection when her husband worked late. The Does filed a petition to prevent the PHA from enforcing a provision in their lease that banned the possession of firearms.

The Does argued that a state law that regulates the possession of firearms preempted the lease. The preemption statute declares, “The State intends to occupy and preempt the entire field of legislation concerning the regulation of firearms…. No political subdivision of the State, including, but not limited to, municipalities, counties, townships and village corporations, may adopt any… [law] concerning… firearms, components, ammunition or supplies.’

The PHA claimed that the state law could not preempt its resolutions because the PHA is not a political subdivision listed in the statute. In 1995 the Maine Supreme Court ruled that the PHA was indeed a political subdivision in the case of Doe v. Portland Housing Authority (656 A.2d 1200). The court also found that the state legislature intended to regulate uniformly the possession of firearms by all Maine residents whether they live in public housing or not. The case was appealed to the U.S. Supreme Court, but the Court would not hear it.

Paula Fiscal et al. v. City and County of San Francisco et al.: California State Law Preempts San Francisco Ordinance that Bans Handguns in the City

The 2008 California Supreme Court ruling in Paula Fiscal et al. v. City and County of San Francisco et al. is an example of state law preempting a local ordinance. California state law regulates firearms within California, including their manufacture, distribution, sale, possession, and transfer. In November 2005 San Francisco voters passed Proposition H, a citywide ordinance that would ban the manufacture, distribution, sale, and transfer of firearms and ammunition within San Francisco, as well as prohibit San Francisco residents from possessing handguns within the city.

A few days after Proposition H was passed by city voters, the National Rifle Association and the Second Amendment Foundation—a nonprofit group that promotes the right to bear arms—filed suit to block the ordinance. In June 2006 Judge James Warren of the San Francisco Superior Court struck down the ordinance, stating that its key aspects were preempted by state law. He held that under California law local officials cannot ban the possession of firearms from law-abiding citizens.

The city appealed the superior court decision, and in January 2008 a three-judge panel of the California State Court of Appeals unanimously ruled to uphold the lower court's decision. The city then appealed the decision to the California Supreme Court, which upheld the previous two decisions. The April 2008 decision by California's

high court exhausted the city's possibilities to appeal the case further.

State v. Owenby: Mental Illness Limits the Right to Bear Firearms in Oregon

In 1991 the Circuit Court of Multnomah County, Oregon, ruled that a defendant who suffered from mental illness and had carefully planned a murder was a danger to himself and others. Because the defendant was unwilling, unable, or unlikely to seek voluntary treatment, he was committed to a psychiatric facility. The court then ordered that the defendant be prohibited from purchasing or possessing firearms for a period of five years, in accordance with Oregon statutes. The defendant, Patrick Owenby, appealed.

The Oregon Court of Appeal ruled in State v. Owenby (111 Or. App. 270, 826 P.2d 51 [1992]) that the statute in question was a narrowly drawn and reasonable restriction on the right to bear arms; was not in violation of the state constitution; was supported by clear and convincing evidence; and, finally, did not violate the federal due process clause as expressed in the Fourteenth Amendment: “Nor shall any State deprive any person of life, liberty, or property, without due process of law.’

The court stated:

The right to bear arms is not absolute. In the exercise of its police power, the legislature may enact reasonable regulations limiting the right and has done so.

Given the nature of firearms… the danger that the statute seeks to avert is a serious one. The restriction on the right of mentally ill people to bear arms, on the other hand, is a relatively minor one. The statute is narrowly drawn and may be invoked only when it is shown that the prohibition is necessary “as a result of the mentally ill person's mental or psychological state,” as demonstrated by past behavior that involves unlawful violence.

Benjamin v. Bailey: Ban on Semiautomatic Firearms in Connecticut Upheld

In July 1995 the Connecticut Supreme Court upheld in Benjamin v. Bailey (234 Conn. 455, 662 A.2d 1226) a 1993 state law banning the sale, possession, or transfer of sixty-seven types of automatic and semiautomatic or burst-fire firearms, ruling that the ban did not violate the state constitutional right to bear arms. The decision made Connecticut one of the first states to have an assault-weapons ban pass legal challenge even though the right of self-defense was specified in its constitution.

State v. Wilchinski: Child Access Prevention in Connecticut Challenged

Florida was the first state to pass a “Child Access Prevention” law (1989). Often referred to as the “Safe Storage” law, it requires adults to either keep loaded guns in a place reasonably inaccessible to children or use a device to lock the gun. If a child (defined as anyone under the age of sixteen) obtains an improperly stored, loaded gun, the adult owner is held criminally liable. According to the Legal Community against Violence, in Child Access Prevention (CAP) Laws: An Evaluation and Comparative Analysis of Federal, State and Local Gun Laws (February 2008,http://www.lcav.org/library/reports _analyses/RegGuns.entire.report.pdf), as of 2008 twenty-seven additional states and the District of Columbia had passed similar laws.

Among these states is Connecticut, whose law was challenged by Joseph Wilchinski, a police officer employed by the Central Connecticut State University. He was charged with criminal negligence and sentenced to three years probation after his two teenage sons and another boy found a loaded revolver in Wilchinski's bedroom in July 1993. One of the boys was shot and died two days later. Wilchinski appealed his conviction, claiming the law was unconstitutionally vague.

In July 1997 the Connecticut Supreme Court upheld the law, declaring in State v. Wilchinski (242 Conn. 211) that the requirement to store firearms in a “securely locked box or other container… in a location which a reasonable person would believe to be secure” was sufficiently clear to inform Wilchinski of safe storage practices.

Coalition of New Jersey Sportsmen v. Whitman: New Jersey's Assault Weapons Ban Challenged

A group of gun clubs and arms manufacturers sought to overturn New Jersey's 1999 ban on assault weapons on the grounds of vagueness, free speech, and equal protection. The U.S. District Court for the District of New Jersey rejected their challenge in March 1999. The court held in Coalition of New Jersey Sportsmen v. Whitman(44 F. Supp. 2d 666) that the statute banning assault weapons was not vague because it “addresses an understandable core of banned guns and adequately puts gun owners on notice that their weapon could be prohibited.” In the ruling, the court further held that the statute's ban on specifically named weapons “does not violate anyone's free speech,” nor does the statute infringe on equal protection rights “because the rationality of the link between public safety and proscribing assault weapons is obvious.” The federal court's decision was affirmed in March 2001 by the U.S. Court of Appeals for the Third Circuit (No. 99-5296).

American Shooting Sports Council, Inc. v. Attorney General: A Challenge to Gun Safety Regulations in Massachusetts

Regulations applying consumer product safety guidelines to all handguns made or sold within the state of Massachusetts were set forth in October 1997 by Scott

Harshbarger (1941–), the state attorney general. They rank among the nation's strongest gun-safety regulations. The day before the rules took effect, the American Shooting Sports Council and a group of Massachusetts gun manufacturers sued to block them, arguing that the attorney general had exceeded his authority. The case ultimately made its way to the Supreme Judicial Court of Massachusetts, which reversed the trial court's ruling in favor of the gun manufacturers. The matter was then sent back to the trial court, where a final ruling in favor of the attorney general was entered in American Shooting Sports Council, Inc. v. Attorney General (429 Mass. 871, 711 N.E.2d 899 [Supreme Judicial Court of Massachusetts 1999]). On April 3, 2000, Harshbarger announced that the regulations were in effect immediately.

Oklahoma: Guns on Corporate Property Challenged

On November 1, 2004, amendments to the Oklahoma Firearms Act and the Oklahoma Self-Defense Act took effect, allowing guns in locked vehicles on corporate property in Oklahoma. The law was passed after twelve workers at an Oklahoma Weyerhaeuser paper mill were fired for violating a company ban on firearms in the company parking lot. Whirlpool Corp., Williams Cos., and ConocoPhillips, Inc., filed a lawsuit against the state in federal court, arguing that the new law was unconstitutional and prevented them from banning firearms in their parking lots to help ensure safe workplaces. A U.S. district court judge issued a temporary restraining order to prevent the amendments from going into effect until the courts made a final ruling.

In March 2005 the Oklahoma Court of Criminal Appeals ruled that the amendments were criminal in nature, rather than civil. This ruling was necessary to guide the U.S. district court judge in his determination. By August 2005 both Whirlpool and Williams had dropped out of the lawsuit, which left ConocoPhillips as the primary challenger. In October 2007 Terence Kern (1944–), the U.S. district judge, placed a permanent injunction against the Oklahoma amendments, ruling that they were in conflict with federal safety laws meant to protect employees at their jobs.

LOCAL RULINGS

Portland, Oregon: Possession of Guns Regulated

The city of Portland, Oregon, passed an ordinance prohibiting “any person on a public street or in a public place to carry a firearm upon his person, or in a vehicle under his control or in which he is an occupant, unless all ammunition has been removed from the chamber and from the cylinder, clip, or magazine” (Portland Ordinance, PCC 14.138210). In 1982 Michael Boyce was convicted of violating this statute. He appealed, contending that the law violated Article 1, Section 27, of the Oregon constitution, which states, “The people shall have the right to bear arms for the defence of themselves, and the State, but the Military shall be kept in strict subordination to the civil power.’

Boyce based his case on State v. Kessler and State v. Blocker (291 Or. 255, 630 P.2d 824 [1981]), in which the Oregon Supreme Court declared unconstitutional an Oregon law banning a number of weapons, including switchblades, billy clubs, and blackjacks. However, the court of appeals did not see the similarities and upheld the lower court's conviction (State v. Boyce (658 P.2d 577 [1983]). The court observed that the statute in Kessler and Blocker forbids the “mere possession” of certain weapons and that was the characteristic that made it unconstitutional. The statute in this case regulates only the manner of possession, something both Kessler and Blocker recognized as permissible when the regulation was reasonable. The city of Portland could regulate the use of weapons within its borders.

In fulfilling its obligation to protect the health, safety, and welfare of its citizens, a government body must sometimes pass legislation that touches on a right guaranteed by the state or federal constitution. Such an encroachment is permissible when the unrestricted exercise of the right poses a clear threat to the “interests and welfare of the public in general,” and the means chosen by the government body do not unreasonably interfere with the right.

The court agreed that individuals had a right to protect their property and themselves:

When a threat to person or property arises in the victim's defense capacity. It is true, on the other hand, that, when the threat arises in a public place, the fact that a person must have any ammunition separated from his firearm will hinder him to the extent that he is put to the trouble of loading the weapon.

However, given the magnitude of the city's felt need to protect the public from an epidemic of random shootings, we think that the hindrance is permissible.

Renton, Washington: Guns Not Permitted Where Alcohol Is Served

The city of Renton, Washington, enacted Municipal Ordinance 3477-59, which states, “It is unlawful for anyone on or in any premise in the City of Renton where alcoholic beverages are dispensed by the drink to… carry any rifle, shotgun, or pistol, whether said person has a license or permit to carry said firearm or not, and whether said firearm is concealed or not.’

Four residents, with the support of the Second Amendment Foundation, went to court seeking an injunction on the ordinance, claiming it violated state law and was unconstitutional. The Superior Court of King County upheld the city ordinance, so the Second Amendment Foundation took the case to the Court of Appeals of Washington.

Article 1, Section 24, of the Washington constitution states, “The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.’

The court of appeals indicated in Second Amendment Foundation v. City of Renton (668 F.2d 596 [1983]) that “it has long been recognized that the constitutional right to keep and bear arms is subject to reasonable regulation by the State under its police power.” Simply because a right is guaranteed by either the state or federal constitution does not mean that it cannot be regulated. According to the court of appeals:

The scope of permissible regulation must depend upon a balancing of the public benefit to be derived from the regulation against the degree to which it frustrates the purposes of the constitutional provision. The right to own and bear arms is only minimally reduced by limiting their possession in bars. The benefit to public safety by reducing the possibility of armed conflict while under the influence of alcohol outweighs the general right to bear arms in defense of self and state.

… On balance, the public's right to a limited and reasonable exercise of police power must prevail against the individual's right to bear arms in public places where liquor is served.

Furthermore, the court stated that the statutes “do not expressly state an unqualified right to be in possession of a firearm at any time or place.” Had the city of Renton instituted “an absolute and unqualified local prohibition against possession of a pistol by the holder of a state permit,” it would have conflicted with state law and Washington's constitution. This it did not do. Rather, the city had instituted a law “which is a limited prohibition reasonably related to particular places and necessary to protect the public safety, health, morals, and general welfare.’

Finally, the Court of Appeals of Washington noted that “while thirty-six states have constitutional provisions concerning the right to bear arms, in none is the right deemed absolute.” Furthermore, “those states with constitutional provisions similar to ours (Alabama, Michigan, Wyoming, Oregon, Indiana) have uniformly held the right subject to reasonable exercise of the police power.” The city of Renton was within its rights when it passed the ordinance barring firearms from bars, and the court upheld the decision of the lower court.

Morton Grove, Illinois: Handguns Are Banned

As soon as Morton Grove, Illinois, a Chicago suburb, passed an ordinance banning handguns in 1981, handgun owners challenged the city in court. Article 1, Section 22, of the Illinois constitution provides that “subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.” Handgun owners raised issues of the right to bear arms as set forth in state and federal constitutions and further contended that if Morton Grove were allowed to pass such laws in contradiction to other towns and cities, a “patchwork quilt” situation would result. Opponents argued that a handgun owner would never know if he or she were violating a law when traveling from town to town.

Morton Grove defended itself, claiming it was within its power to limit or ban the possession of handguns if city officials believed handgun possession was a threat to peace and stability. The city further claimed that its ordinance did not violate Section 22 of the Illinois constitution because it guaranteed the right to keep “some guns.” The Morton Grove law did not ban all guns, only handguns.

LEGAL PROCEEDINGS. The cases of Victor Quilici, Robert Stengl, George Reichert, and Robert Metler were combined and brought to the Federal District Court of Northern Illinois in Quilici v. Village of Morton Grove (532 F.Supp. 1169 [1981]), in which the court upheld the town's right to ban handguns. The U.S. Court of Appeals, Seventh District, also upheld in Quilici v. Village of Morton Grove (695 F.2d 261 [7th Cir. 1982]) the findings of the district court, saying “the right to keep and bear handguns is not guaranteed by the Second Amendment.” The case was appealed to the U.S. Supreme Court. The High Court refused to hear the case, so the ruling of the lower court of appeals stood.

A NEW ROUTE. The Morton Grove handgun owners then went to the Circuit Court of Cook County for an injunction to prevent Morton Grove from instituting the ordinance banning handguns. The county circuit court upheld the validity of the ordinance. The handgun owners next appealed to the Appellate Court of Illinois, First District, Third Division. In Kalodimos v. Village of Morton Grove (447 NE.2d 849 [1983]), the court upheld the decisions of the lower courts. Even though the court agreed with the handgun owners that “gun control legislation could vary from municipality to municipality, we find that the framers [of the Illinois constitution] envisioned this kind of local control.’

The case was again appealed, and in October 1984 the Illinois Supreme Court upheld in Kalodimos v. Village of Morton Grove (53 LW 2233) the lower courts” decisions. Agreeing with earlier observations, the state's highest court noted that “while the right to possess firearms for the purposes of self-defense may be necessary to protect important personal liberties from encroachment by others, it does not lie at the heart of the relationship between individuals and their government.” Thus, Morton Grove needed only to have had a “rational basis” for instituting its ban on handguns. The Illinois Supreme Court concluded, “Because of the comparative ease with

which handguns can be concealed and handled, a ban on handguns could rationally have been viewed as a way of reducing the frequency of premeditated violent attacks as well as unplanned criminal shootings in the heat of passion or an overreaction to fears of assault, accidental shootings by children or by adults who are unaware that a handgun is loaded, or suicides. The ordinance is a proper exercise of the police power.”

Chicago: Limits on Handgun Possession

On March 19, 1982, the Chicago City Council passed an ordinance prohibiting the registration of any handgun after April 10, 1982, the effective date of the ordinance, unless it was “validly registered to a current owner in the City of Chicago” before April 10, 1982 (Municipal Code of the City of Chicago, Chapter 11.1–3[c]). Jerome Sklar lived in neighboring Skokie, Illinois, when the law was passed. He owned a handgun and held a valid Illinois Firearms Identification Card. On April 15, 1982, after the ordinance had gone into effect, he moved to Chicago. He could not register the weapon and, therefore, was unable to bring it into the city.

Sklar went to court, claiming that the city of Chicago had violated the equal protection clause of the U.S. Constitution because he was unable to register the gun that he owned, whereas owners of firearms who resided in Chicago before the effective date of the ordinance had an opportunity to take advantage of the law's registration requirements. By this time, Quilici v. Village of Morton Grove had been decided in the Seventh Circuit Court of Appeals, a decision that applied to this judicial region. Therefore, the U.S. District Court for the Northern District of Illinois indicated that “Quilici compels this court to conclude that the Chicago firearms ordinance does not infringe on a constitutionally protected right.” The court concluded that the city of Chicago had legitimately and rationally used its police power to promote the health and safety of its citizens. Sklar's argument that Chicago could have chosen better ways to protect its citizens from the negative effects of firearms was irrelevant.

The court concluded that the ordinance did not violate the equal protection clause of the U.S. Constitution by limiting new registrations instead of banning handguns altogether. The city was under no legal requirement to take an all or nothing approach to limiting handguns.

Sklar appealed the district court's decision to the U.S. Court of Appeals, Seventh Circuit, the same court that had ruled on Quilici v. Village of Morton Grove. In his appeal, Sklar claimed that his constitutionally guaranteed right to travel had been violated, because he could not move into Chicago without giving up his gun. In Sklar v. Byrne (727 F.2d 633 [1984]), the court upheld the lower court's decision, citing the precedent established in Quilici. The court did not believe that a fundamental constitutional issue was involved. Therefore, the city of Chicago had a right to institute local regulations as long as it did not go overboard. The court stated:

The Chicago handgun ordinance as a whole promotes legitimate government goals. The city council set forth its purposes in the preamble to the ordinance. The council found that handguns and other firearms play a major role in crimes and accidental deaths and injuries, and that the “convenient availability” of firearms and ammunition contributed to deaths and injuries in Chicago. The council therefore enacted the ordinance to restrict the availability of firearms and thereby to prevent some deaths and injuries among Chicago citizens. The city's primary goals are thus classic examples of the city's police power to protect the health and safety of its citizens.

Sklar argued that it was irrational and “inconsistent with the overall purposes of the ordinance” to allow some people to have handguns and others not to, and not to classify gun owners on the basis of their ability to handle handguns safely. In dismissing his claim, the court stated, “that argument essentially asks this court to second-guess the judgment of the city council. The Constitution does not require the city council to act with a single purpose or to be entirely consistent. Indeed, the council is a political body for the accommodation of many conflicting interests.…The Constitution does not require the city council to enact the perfect law. The council may proceed step by step, ‘adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations.’”

In both Quilici and Sklar, the courts were not saying that handgun control is or is not a good decision for any local authority to make. They did not see the possession of a handgun as a fundamental right protected by either the federal or the state constitution. The courts stated that a town or city, under the police powers granted it by American tradition and the constitution of the state of Illinois, has the right to decide and implement such an ordinance for its own people. A local ordinance does not have to be consistent, as long as the city council can prove that it thought out its decision rationally.

West Hollywood, California: Saturday Night Specials Banned

In late 1998 the California Supreme Court let stand a ruling by the California Court of Appeals on inexpensive handguns known as Saturday Night Specials. The court of appeals had upheld a municipal ban by the city of West Hollywood on the sale of this type of weapon. Several manufacturers of Saturday Night Specials are located within fifty miles of the city. In its opinion the court rejected the gun lobby's claim that California state law preempted the ordinance; furthermore, the court found that the ban did not violate the principles of equal protection or due process. Gun rights advocates maintained

that singling out inexpensive weapons denies poor people an affordable means of self-defense.

Denver, Colorado: State May Not Override Denver's Right to Ban Certain Guns

In 2003 the Colorado state legislature passed gun legislation that preempted many of Denver's local firearms laws. The city of Denver filed a lawsuit against the state of Colorado and Governor Bill Owens (1950–) to retain its city ordinances. The Denver district court judges Joseph E. Meyer III and Lawrence Manzanares ruled that the state legislation did and could override some of Denver's minor ordinances, but that the city still had the right to ban certain guns such as assault weapons and some handguns.

RESPONSIBILITY FOR HANDGUN DEATHS

The cases presented thus far on the federal, state, and local levels focus primarily on the right to bear arms. The following cases probe the responsibilities and liabilities associated with the use of those arms. Some victims of the use of certain weapons have tried to place that responsibility and liability on the manufacturers of the weapons, whereas others fault the people who made the weapons available to criminals. Each of the decisions presented here was based on state laws that differ greatly.

California: Gun Dealers Can Be Held Liable for Gun Violations of Others

Nineteen-year-old Jeff Randa had mentioned to a gun dealer many times that he wanted to buy a handgun and ammunition. The dealer told the youth that he could not buy a gun until he was twenty-one years old. Randa asked if his grandmother could purchase the weapon. The dealer replied that if she were a qualified buyer she could but that the dealer could not sell her the weapon “just so she could give the gun to her grandson.”

Subsequently, Randa's grandmother came into the store with him and purchased the handgun the youth wanted. Twelve days later, Randa went to a party with the gun. Bryan Hoosier, who was also at the party, told Randa to point the gun and shoot. Randa did so, killing Hoosier, and was later convicted of voluntary manslaughter.

Hoosier's father sued the gun dealership for negligence, accusing the dealership of knowing that the gun would be given to a minor after being sold to an adult. The dealership argued that it could not be liable and that the state laws imposed criminal penalties only on violators.

The California Court of Appeals ruled in Hoosier v. Randa (17 Cal. Rptr. 2d 518, 521 [Cal. Ct. App. 1993]) that the dealer was indeed liable for injuries. The state gun control laws were passed not only to establish criminal penalties but also to protect the public. If a dealer violated the law, he also violated his responsibility of care owed to the public. Consequently, any person harmed by such a violation may sue the violator.

Ohio: Gun Show Promoters Must Provide Adequate Security against Juvenile Gun Theft

During a 1992 gun show promoted by Niles Gun Show, Inc., four youths under the age of eighteen stole several handguns. The corporation from which the vendors rented space had no policy that required the dealers to protect their wares from being stolen, although it had an unenforced policy barring minors from entering the show.

After leaving the show, the youths also stole a car. While driving around in the car, the juveniles confronted two men, Greg L. Pavlides and Thomas E. Snedeker. One of the boys, Edward A. Tilley III, shot Pavlides in the chest and Snedeker in the head with one of the stolen guns. Tilley was arrested, charged, and convicted of two counts of attempted murder and one count of unauthorized use of a motor vehicle.

Pavlides and Snedeker survived their injuries and sued the Niles Gun Show for negligence for not protecting them and the rest of the public from criminal acts by third parties who stole weapons that had not been properly secured. The trial court dismissed the case, stating that the promoters had no such responsibility, but the Ohio Court of Appeals reversed the lower court's decision, sending the case back to be tried. The court of appeals ruled that the promoters of gun shows have a duty to provide adequate security to protect the public from criminal acts that might occur if the guns were stolen. The court explained that gun show operators should secure their firearms and make a reasonable effort to bar minors from stealing or purchasing weapons and ammunition. The court further stated that it is “common knowledge” that minors possessing guns can create dangerous situations, and consequently gun show promoters should have been aware that minors stealing guns might use them in criminal activity.

Texas: Gun Seller Not Liable for Purchaser's Suicide

In December 1980 James J. Robertson purchased a handgun. Eighteen months later, he used that gun to kill himself. Robertson's family brought a wrongful-death suit against the seller of the handgun before the 298th Judicial District Court, Dallas County, Texas. In Robertson v. Grogan Investment Company (710 SW.2d 678 [1986]), the district court found in favor of the defendant, Grogan Investments, because “the sale of handguns… to the general public is an abnormally dangerous and ultra-hazardous activity.… Texas courts, when confronted with the opportunity to apply strict liability for ultra-hazardous activities, have declined to do so and have consistently required some other showing, such as negligence or trespass, for recovery.”

Florida: Store Responsible in Criminal Act for Selling Ammunition to Juveniles

In 1991 a Florida Wal-Mart store employee sold ammunition to two teenagers without asking about age or requesting identification, which is a violation of federal law. Several hours later the teenagers used the ammunition in a robbery of an auto parts store, during which they shot and killed Billy Wayne Coker. Coker's wife filed suit against Wal-Mart.

Even though Wal-Mart acknowledged that the sale was illegal, it argued that the perpetrators’ intervening act of murder was not foreseeable and, therefore, the illegal sale was not the legal cause of Coker's death. The court agreed with this argument and dismissed the case. However, the Florida Court of Appeals ruled that an ammunition vendor's illegal sale could be the legal cause of an injury or death caused by the buyer's intentional or criminal act. In July 1998 the Florida Supreme Court upheld in Wal-Mart Stores, Inc. v. Coker (1998 Fla. Lexis 861) the $2.6 million verdict against Wal-Mart for negligence in selling handgun ammunition to underaged buyers.

Gun Manufacturers and Liability for Gunshot Injuries

MARYLAND : KELLEY V. R. G. INDUSTRIES, INC . Olen J. Kelley was injured in 1981 when he was shot in the chest during an armed robbery of the grocery store where he worked. The gun used was a Rohm revolver handgun model RG-38S, designed and marketed by Rohm Gesellschaft, a German corporation. The handgun was assembled and initially sold by R. G. Industries, Inc., a Miami-based subsidiary of the German corporation. Kelley and his wife filed suits against Rohm Gesellschaft and R. G. Industries in the Circuit Court of Montgomery County, Maryland.

Two counts charged that the handgun was “abnormally dangerous” and “defective in its marketing, promotion, distribution, and design.” A third count charged negligence. The case revolved around whether or not the gun in question was a Saturday Night Special, which had been and still is banned from import by the ATF. The Federal District Court of Baltimore, where the case was first brought, asked the state court for a ruling on whether the manufacturer could be held liable under Maryland law.

The Maryland Court of Appeals ruled in Kelley v. R. G. Industries, Inc. (497 A.2d 1143 [1985]) that the manufacturer or marketers could not be held strictly liable because handguns are “abnormally dangerous products” and their manufacturing and marketing are “abnormally dangerous activit[ies].” In its decision the court noted, “Contrary to Kelley's argument, a handgun is not defective merely because it is capable of being used during criminal activity to inflict harm. A consumer would expect a handgun to be dangerous, by its very nature, and to have the capacity to fire a bullet with deadly force.”

The court of appeals also stated that Kelley confused a product's normal function, which may be dangerous by its very nature, with a defect in its design and function. Kelley had cited as an example that a car is dangerous if it is used to run down pedestrians. The injury that results is from the nature of the product—the ability to be propelled to great speeds at great force. However, if the gas tank of the car leaked in such a way as to cause an explosion in the event of a rear-end collision, then the design of the product would be defective, and the manufacturer would be liable. The court concluded that to impose “strict liability upon the manufacturers or marketers of handguns for gunshot injuries resulting from the misuse of handguns by others, would be contrary to Maryland public policy.”

The Maryland court's opinion differed on Saturday Night Specials, which it defined as guns “characterized by short barrels, light weight, easy concealability, low cost, use of cheap quality materials, poor manufacture, inaccuracy and unreliability.” The court considered these guns “largely unfit for any of the recognized legitimate uses sanctioned by the Maryland gun control legislation. They are too inaccurate, unreliable and poorly made for use by law enforcement personnel, sportsmen, homeowners or businessmen.… The chief ‘value’ a Saturday Night Special handgun has is in criminal activity, because of its easy concealability and low price.”

Manufacturers or marketers are liable because they should know this type of gun is made primarily for criminal activity. Judge John C. Eldridge (1933–) quoted an R. G. Industries salesperson as telling a prospective handgun marketer, “If your store is anywhere near a ghetto area, these ought to sell real well. This is most assuredly a ghetto gun.” The salesman allegedly went on to say that even though the gun sold well, it was virtually useless, and that he would be afraid to fire it.

The court of appeals did not rule on whether the gun in question fell within the category of Saturday Night Specials but referred that decision to the U.S. District Court. It did, however, indicate that strong evidence had been presented that the gun fit many of the qualifications; if it were found to be a Saturday Night Special, liability against both manufacturer and marketer could be imposed. This decision applied only in Maryland, and the Maryland legislature soon passed a law overriding it. Few courts have accepted this interpretation.

NEW MEXICO : ARMIJO V. EX CAM, INC . Dolores Armijo's brother, Steven Armijo, shot and killed James Salusberry, Dolores's husband, in front of Dolores and her daughter. He then tried to shoot them, but the gun jammed. Dolores Armijo, claiming the gun used was a

Saturday Night Special, sued Ex Cam, Inc., the importer and distributor of the weapon.

The suit was based on four theories: strict product liability (the product was defective and unreasonably dangerous; therefore, the manufacturer was responsible for the actions of the product), “ultra-hazardous activity” liability (a gun is a dangerous product and the manufacturer is accountable for the results of its use), negligence liability (the manufacturer did not show reasonable care while marketing a product that carried some degree of risk that it might be used to commit a crime), and a narrow form of strict product liability for Saturday Night Specials put forth in Kelley v. R. G. Industries, Inc.

The U.S. District Court in New Mexico did not believe that any court in New Mexico would ever recognize any of these theories as the basis of a court case under New Mexico law. In Armijo v. Ex Cam, Inc. (656 F.Supp. 771 [1987]), the court said:

It would be evident to any potential consumer that a gun could be used as a murder weapon. So could a knife, an axe, a bow and arrows, a length of chain. The mere fact that a product is capable of being misused to criminal ends does not render the product defective.

[Based on New Mexico law, such a case] would not result in liability for a manufacturer of guns, as guns are commonly distributed and the dangers… are so obvious as to not require any manufacturers’ warnings.

The court showed little respect for Kelley v. R. G. Industries, Inc., indicating that it went against common law in the state of New Mexico; therefore, it would not be considered. Furthermore, the court concluded that “all firearms are capable of being used for criminal activity. Merely to impose liability upon the manufacturers of the cheapest types of handguns will not avoid that basic fact. Instead, claims against gun manufacturers will have the anomalous [unusual] result that only persons shot with cheap guns will be able to recover, while those shot with expensive guns, admitted by the Kelley court to be more accurate and therefore deadlier, would take nothing.”

WASHINGTON, D.C .: DELAHANTY V. HINCKLEY . In 1981 John Hinckley Jr. (1955–) tried to assassinate President Ronald Reagan (1911–2004). An individual injured during the assassination attempt sued to hold the gun manufacturer liable based on negligence, strict product liability, and a “social utility” claim founded on strict liability for unusually dangerous products.

In Delahanty v. Hinckley (DC, No 88-488 [1989]), the Washington, D.C., court rejected the plaintiff's claims. There was no issue that the gun did not work properly. Furthermore, a manufacturer had no duty to warn a buyer “when the danger, or potentiality of danger, is generally known and recognized.”

The court did not believe the marketing of a handgun was in and of itself dangerous; rather, the danger resulted from the action of a third party. The plaintiff had shown no connection between the gun manufacturer and Hinckley, nor had the plaintiff shown a reasonable way in which the gun manufacturer could have prevented Hinckley from using the weapon to try to kill President Reagan. The court dismissed the Kelley argument, not accepting a ruling that categorizes one type of product as liable for negligence simply because it is inexpensive and/or poorly made.

WASHINGTON, D.C.: THE FEDERAL GOVERNMENT SETTLES THE MANUFACTURER LIABILITY ISSUE. In 1998, after the successful campaign waged against the tobacco industry to hold it responsible for lung cancer deaths caused by smoking cigarettes, many cities and counties across the United States began filing lawsuits against gun manufacturers and dealers. At issue was the gun distribution system, which was thought to allow guns to pass too easily to criminals and youth. Regardless, Fox Butterfield reports in “Gun Industry Is Gaining Immunity from Suits” (New York Times, September 1, 2002) that by 2002 thirty states had passed laws granting immunity to the gun industry from these civil lawsuits. California, in a counter measure, passed a bill repealing such an immunity law in its state.

In 2005 Congress settled this issue with the Passage of the Protection of Lawful Commerce in Arms Act. President George W. Bush (1946–) signed the bill into law in October 2005. This act prohibits liability actions (charging legal responsibility) against firearms or ammunition manufacturers and sellers for unlawful misuse of their products. With regard to other issues, it also prohibits the sale of a handgun unless the purchaser is provided with a secure gun storage or safety device, and it provides for particular sentences when armor-piercing ammunition is used in certain crimes.