The tragic mass shooting in Highland Park, Illinois, this month has renewed calls for new gun control legislation, including a ban on so-called assault weapons, writes Stephen P. Halbrook. Ignore the alarm bells.
The tragic mass shooting in Highland Park, Illinois, this month has renewed calls for new gun control legislation, including a ban on so-called assault weapons. It also has raised new concerns about the Supreme Court’s June 23 decision in New York State Rifle and Pistol Association v. Bruen, in which the court ruled that the Second Amendment right to bear arms includes the right to carry a handgun outside the home.
The decision does not address bans on modern rifles, but it reaffirms the 2008 ruling in District of Columbia v. Heller that the Second Amendment “protects the possession and use of weapons that are ‘in common use at the time.’” AR-15-type rifles are indisputably in common use. While “the Second Amendment’s definition of ‘arms’ is fixed according to its historical understanding,” the court noted, “that general definition covers modern instruments that facilitate armed self-defense.
Step one of the test asks whether an act involving arms is within the scope of the amendment as determined by its text and historical understanding. If it is, step two asks whether the state’s overriding interest in crime control gives it “proper cause” to balance the amendment’s guarantees away. That “is one step too many,” the Bruen decision said.
When slavery was abolished and Southern states enacted the so-called Black Codes, to restrict the rights, including Second Amendment rights, of the freedmen, the 14th Amendment was ratified in part to protect their rights, including their Second Amendment rights, from state infringement. So, from the viewpoint of relevant history, closest to the ratification of both of these amendments, the right to carry arms in public was clearly established.
The challenge to the proper-cause requirement raised no other concerns, and the court did not question other requirements for carry permits, such as background checks and training. However, “because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry,” the court warned.
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