Friday, March 14, 2014

Is the Second Amendment Really in Jeopardy?

     Among supposed Constitutional rights under attack by President Obama and his administration, the Second Amendment may be at the top of the list.  Conservatives and liberals alike feel as though their Constitutional right to keep and bear arms is being unfairly and unconstitutionally targeted by the Obama administration.  Last year’s failed Senate vote to establish universal background checks in response to the Sandy Hook massacre was a major win for the NRA and the gun lobby.  The gun lobby pulled out all the stops in their assault against the measure by utilizing scare tactics to raise public awareness of national registries, which would have been barred by the proposed amendment in the Senate.  The fight continues with several legal challenges climbing the American judicial ladder in the court systems.

     Most recently, petitioners in California appealed to Supreme Court Justice Anthony Kennedy in an emergency petition to issue an injunction in a district court ruling which denied their request to enjoin the California city of Sunnyvale to enforce a restriction on magazines holding more than ten rounds.  Justice Kennedy, who handles emergency matters in the Ninth Circuit region where this case was located, denied the petitioners request and did not provide a reason.  Typically, during such appeals, justices will rule based on the likelihood of success on the merits - in other words, they will issue an injunction if the petitioners have a favorable prospect of winning in the next appellate stage based on their legal argument.  When analyzing this case, Justice Kennedy's decision may prove to be a bellwether as to the future of this suit. 

     A denial of one's Constitutional right is grounds for an emergency appeal.  However, the applicant's appeal in Sunnyvale stated that they determined owning a magazine holding more than ten rounds is their Second Amendment right.  As with most such arguments, plaintiffs are using the self-defense argument in conjunction with the Second Amendment.  Plaintiffs stated in their petition, "But even if heightened means-end judicial review is appropriate here, the City has not and cannot show that banning law-abiding citizens from engaging in constitutionally protected conduct (here, possessing arms protected by the Second Amendment) is sufficiently related or appropriately tailored to its objective of preventing criminal misuse of the items it bans...In short, the Ordinance can survive neither intermediate nor strict scrutiny."

     Petitioners also pointed to a landmark Supreme Court decision in 2007 in District of Columbia v. Heller, where the Court ruled law-abiding citizens have a Second Amendment right to possess a firearm for reasons unrelated to a militia such as self-defense.  While no one is denying the right to possess a firearm, the question in Sunnyvale is one of magazine capacity, an issue on which the Supreme Court has yet to rule.  The big question in Sunnyvale is whether magazines containing more than ten rounds are safer than those containing less.

     Is a revolver holding only six rounds an inferior form of self-defense than say, an AR-15 that can hold up to thirty rounds and is accurate at a range well over 800 yards?  When examining self-defense, the question should be what one’s reasonable expectations of threats in self-defending are.  Many who own weapons for self-defense purposes will not be under siege where a thirty round weapon is imperative.  Many Second Amendment defenders believe their right is one without limits.  Relevant case law points to limits on other amendments including the First Amendment of free speech.  

     Other cases in the court system recently include a similar challenge to the Heller case involving a Constitutional right to carry a concealed weapon outside the home for self-defense.  The case, Drake v Jerejian, is still waiting to be granted by the Court.  In a suit argued in front of the Court in January, the Court examined the limits to what is called "straw purchases."  In Abramski v United States, the Court is examining Congress' intent when it enacted a law that addressed straw purchases.  In short, the law prohibits the sale of firearms to those who falsify information on forms from licensed dealers as well as prohibiting the sale of firearms without going through a licensed dealer.  Petitioners in Abramski are challenging this law on the grounds that a qualified, law abiding citizen should be able to purchase firearms from other private citizens who legally purchased them through licensed dealers.

     Most rights in the United States are not limitless.  The State, in some cases, does have a compelling interest to ensure the safety of all its citizens by barring the rights of others.  As in the case of the California city of Sunnyvale, they believe limiting magazines to under ten rounds will ensure this utilitarian protection.  Many proponents of gun reform believe if there were limits to the size of magazines, injuries and casualties could have been prevented in such tragedies as Sandy Hook and the attack on former Congresswoman Gabby Giffords.  During the Giffords attack, the assailant was brought down only when he had to pause to reload his clip containing forty rounds of ammunition. 

     While the issue of Second Amendment infringement remains a hot topic, these cases will provide more substance to the ongoing debate.  Most of these cases are different in scope but in the short term, it is hard to tell how the Court will rule on magazine capacity.  Justice Kennedy could have referred the California challenge to the full Court but decided instead to rule himself.  With a conservative Court, history points to a jurisprudence sympathetic to the Second Amendment.  It is unclear when the Court will decide Abramski and the defendants have until later this month to respond in Drake.

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