This guest post by my friend Sandy Sanders is his second in the Lincoln-Douglas Debates II series – the Sanders-Scott Debates. The first entries, on abortion policy, are here and here. Sandy’s entry on this issue is also posted at Virginia Right. You can read my entry on this issue at Foggy Bottom Line here.

Your Vote in November for President Could Decide your Right to Keep and Bear Arms!

It may not happen again. But I have to thank Canadian Prime Minister Justin Trudeau for demonstrating the essential importance of gun rights enshrined in basic law (from the CBC):

Trudeau announces ban on 1,500 types of ‘assault-style’ firearms — effective immediately

A couple of little gems from the article:

“These weapons were designed for one purpose and one purpose only: to kill the largest number of people in the shortest amount of time,” Trudeau said. “There is no use and no place for such weapons in Canada.”
While he acknowledged that most firearms owners are law-abiding citizens, he said hunters don’t need this sort of firepower.

To be honest, the firepower needed to hunt is none of the government’s business. And it gets worse – it’s not even an Act of Parliament (as bad as that might be) it is a regulation:

The ban will be enacted through regulations approved by an order-in-council from cabinet — not through legislation. Trudeau said the government was ready to enact this campaign promise months ago, before the COVID-19 pandemic disrupted the legislative agenda.

Here is the text of the Second Amendment:

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

And Virginia (Virginia was first: June 12, 1776 – Art. I, Sect. 13):

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

The language is very similar. Here is the corresponding right to keep and bear arms in the Canadian Constitution:

…

It’s blank. There isn’t any. And now the people in Canada have lost an important and essential liberty: the right to keep and bear arms.

This is a good start for an essay on guns. Alas, I have to move to, not too exciting for most readers, court cases.

The issue on what does the Second Amendment mean was not squarely placed before the Supreme Court until 2008. (Yes there was a Depression-era case involving sawed-off shotguns [United States v. Miller, 307 U.S. 174 (1939)] that held that possession of such a weapon that was was not part of the arsenal of a militia was not protected by the Second Amendment.) Some think that is because few questioned the Second Amendment right until more recently.

In 2008, the Supreme Court of the United States held that a non-felonious citizen has a right to possess a weapon in self-defense (subject to certain administrative requirements) in District of Columbia, et al. v. Heller [554 U.S. 570 (2008)]:

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful fire-arm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

There are a number of exceptions:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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

There is also an exception (admittedly very unclear) prohibiting “dangerous and unusual” weapons. It could be read to prohibit “assault weapons”. That case will someday reach the Court.

I apologize for all the legal cases and there is one more but it can be easily discussed: McDonald, et al. v. Chicago (561 U.S. 742 [2010]) where the Second Amendment is “incorporated” into the Fourteenth Amendment and thus enforceable against state and local governments.

Alas, there is little analysis in all these cases. What judicial scrutiny – what standard does a government restriction on the right to keep and bear arms have to meet to be constitutional. Strict scrutiny is a very compelling state interest and the least restrictive alternative must be used. Rational based scrutiny is pretty much what it implies: If the state law has a rational basis, it will be upheld. There is also an intermediate level of scrutiny. It requires the government to assert an important interest and there has to be a substantial basis between the state law and the important governmental interest. It is very likely that the right to bear arms will either have strict scrutiny or intermediate scrutiny.

Most of the explicit constitutional rights (e.g, freedom of expression) receive strict scrutiny and so does some classifications (race-based classifications); the major classification that receives the intermediate level of scrutiny is gender-based classifications.

This would speak powerfully for strict scrutiny but the Fourth Circuit (the federal appellate court that has jurisdiction over Virginia) has adopted the intermediate level of scrutiny and upheld the so-called “assault weapons” ban. (The federal court held that assault weapons were military style weapons and not protected by the Second Amendment at all.)

There is one major problem with not applying strict scrutiny to Second Amendment rights: An explicit personal right gets less constitutional protection (“…small not be infringed”) than another explicit personal right (“Congress small make no law…”). There has to be an important reason for such a distinction.

The Supreme Court will decide this issue at some time. Virginia laws such as the banning of most private sales or transfers of firearms (so-called “Universal Background Checks – a misleading term at best in that universal background checks are in fact required for all sales through federally-licensed dealers), and the so-called “red flag” laws (which raise another constitutional issue: Procedural due process – is the manner the state provides for a hearing to be heard on the deprivation of gun rights fundamentally fair); I think the one gun a month law is probably constitutional.

I suggest that both of these laws are constitutionally problematic. Banning an entire class of gun sales is a clear infringement on the right to bear arms probably not shown to effectively prevent mass shootings but will affect the right to self-defense. Red flag laws could be constitutional if the firearm possession issue is subordinate to the matter at hand: Is the owner of the firearm(s) a threat to him/herself or others? If so, custody could be the answer without emphasizing gun rights. (A relative or friend could have authority to temporarily seize the gun(s) until a later court says give them back to the owner.) The fact that it takes law enforcement to start the process under the Virginia red flag law leans the law toward it being constitutional. Finally, there are two ancillary issues, one fairly important and another not as critical to courts looking at the law as written: The important issue is that protected speech cannot be a reason to take guns, even if that speech is “mean and hateful”. The speech has to be a clear imminent threat to violence. The second is that different countries and cities in Virginia might have unstated but very different standards for the seeking and taking of guns. I would think Wise County would have a very different view of the criteria to remove guns than say Arlington County. But that might arise after the law is in effect for some time but not compelling to its initial constitutional review. Judges will assume fair and even application of a law in its initial review.

I apologize for all the legal stuff! Hence I must close with this: Four justices of the Supreme Court (Justices Sotomayor, Ginsburg, Breyer and Stevens) held in BOTH Heller and McDonald basically held that there is NO personal right to bear arms. Stevens has even after he left the Court, suggested the Second Amendment ought to be repealed. Stevens was replaced by Justice Elena Kagan who is not likely to be materially different on gun rights.

Let us also remember (please note to the Public Safety Minister in Canada) that one right to the right to keep and bear arms – which I am afraid the late and great Justice Scalia did not adequately give enough credit to in Heller: An armed citizenry is a threat to tyrannical government.

James Madison is quoted as saying both the right to bear arms and limited government are defenses against tyranny:

“Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.”

George Washington said:

“A free people ought not only to be armed, but disciplined; to which end a uniform and well-digested plan is requisite; and their safety and interest require that they should promote such manufactories as tend to render them independent of others for essential, particularly military, supplies.” 

Both quotes came from here.

Thankfully, the people of the US have as Jefferson put it, “the rational and peaceable instrument of reform”, the ballot.

Alas it is today unfortunately true: Who you cast that ballot for in 2020 for President and United States Senate is critical to the continuance to your right to bear arms. I’d run ads in key states saying exactly that.