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Firearms and the Oregon and Federal Constitutions (02.26.17 updates)
- Constitutional Components of Firearms Law
- 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.”
- Brief Historical Context
- England and Pre-USA
The Second Amendment is not about a right to self-defense and is not a right to keep and bear sporting goods, i.e., guns for hunting.
With that as a premise, assuming a general and complete firearm ban is contrary to the Second Amendment, one should ponder whether the state could ban “self-defense.” The right to self-defense isn’t in the Constitution. It is a creature of statute. In most state criminal statutes, a person has the right to use the reasonable degree of force they reasonably believe necessary to stop or prevent the imminent unlawful force of another. So, what if that statute was removed from the books? Absent jury nullification, could a person be successfully prosecuted for assaulting his or her attacker in self-defense? Or does a person have an inalienable right to self-defense in certain circumstances?
If a legislature chose to remove that defense from the statutes, we still have that innate human right. It is a “right” that must be included under the “penumbra” of rights that judicial activists have created. There are certain things the government can’t outlaw due to natural rights hinted at in the Constitution, i.e., a women’s right over her body (abortion), and the right to self-defense.
What many people forget is that the Bill of Rights isn’t an exhaustive list of rights. It was just the ones that the Founders compromised and traded on and felt were the most likely to be infringed upon by government. They just wanted to make it crystal clear for the government to back off of these rights. It isn’t an affirmative list of things you can do, but it is a partial list of what the government cannot infringe upon.
Back to the question of banning the right to self-defense: The fact that we can ponder this question and leave it unanswered is suggests that the Second Amendment is something more than personal self-defense against other citizens or simply about hunting. For starters, it only mentions “arms” and doesn’t give any explicit rights protection of the left cross or right jab in the face of a threat. Do we need a constitutional amendment to prevent the government from banning Muay Tai or Brazilian Jujitsu?
When talking to jurors about the right to self-defense, or to clients about the use of deadly force as a gun owner, I often discuss how to know you are actually acting in self-defense. The answer for me is this: If you have time to consider what the police or jury would think if you pulled the trigger or threw a punch, then the threat probably isn’t imminent, and it’s probably time to remove yourself from this situation. If you are too scared or preoccupied with surviving the next 10 seconds, then you are more likely authorized to use force–unless you are the unfortunate “unreasonable” person who is later determined to have overreacted. But as they say, it’s better to be judged by twelve than carried by six.
English historians largely believe that the right to bear arms is derived from this natural right of self-defense. In 1689 the English Bill of Rights came in the wake of the Glorious Revolution and disputes between the King’s power versus Parliament. Thereafter the new Protestant rulers agreed to the bill of rights which explicitly states that it was asserting “certain ancient rights and liberties,” including “[t]hat the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.”
Other historians believe that a new right to bear arms was created out of this in response to the “ancient rights” that the previous Catholic king had attempted to crush. This contrarian position was rejected by the US Supreme Court in Heller (the English Bill of Rights was “clearly an individual right, having nothing whatsoever to do with service in the militia” and was a right not to be disarmed by the Crown and was not the granting of a new right to have arms).
Regardless of the reasons behind this right in the English Bill of Rights, it’s still an important historical document for putting the Second Amendment in context. Nonetheless, this is not an entire analogue to our Second Amendment, which says “shall not be infringed.” Whereas the English right appears to be acknowledging the existence or establishing such a right but giving Parliament the ability to consent to disarmament by the King.
But the historical context of the English right still causes constitutional debate over the purpose of the right. Is it to preserve the regulation of arms to the states rather than the federal government much like Parliament having the ability to override the King? Or, alternatively, was it a new right like described in the Heller case?
District of Columbia v. Heller (2008) – An opinion that reads like a history lesson – An individual’s right to bear arms or the right of a militia?
HOLDING 1 – An Individual Right: The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
The 2nd Amendment’s Mini-Preamble: The Amendment’s prefatory clause (“A well regulated Militia, being necessary to the security of a free State”) announces a purpose, but does not limit or expand the scope of the second part, the operative clause (“the right of the people to keep and bear Arms, shall not be infringed”).
REASONING: The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms
The “mini-preamble” is not inconsistent with the operative clause.
REASONING: Since the “militia” named in the 2nd Amendment comprised of all males that were physically able to fight for the defense of the citizenry as a whole, the Antifederalists were afraid that Congress would disarm citizens’ militia thus allowing for a standing army controlled by a political party or allowing for a certain state’s militia to rule over the others. This fear resulted in identifying the militia in the prefatory clause with the goal of keeping Congress from screwing over this “ancient right.”
An individual right not a militia right.
REASONING – State Constitutions: The Supreme Court really thinks they are right because the fact that similar state rights were adopted right before and right after the 2nd In particular, three state constitutions explicitly referred to an individual’s right to bear arms.
REASONING – Scholars from 1800s: The Supreme Court really thinks they are right because 2A scholars, courts and legislators shortly after ratification throughout the 1800s supported this reasoning.
REASONING – No contrary precedent: None of the SCOTUS’s previous holdings make Heller’s holding inconsistent.
HOLDING 2 – 2A Right is Not an Unlimited Right: All rights have limits, even this one.
The right doesn’t allow you to keep and bear all weapons (nukes, missiles, etc.). Felons and mentally ill can be restricted according to prior precedent. There have been longstanding “gun free zones” deemed constitutional (schools, courts, etc.). Also reasonable restrictions historically have been to put certain conditions on commercial retail sales.
HOLDING 3 – Trigger locks and handgun buns violate 2A but licensing requirement not addressed.
- McDonald v. Chicago (2010): Does the 2nd Amendment right apply to the individual states?
HOLDING: Right to Keep and Bear Arms is incorporated in the Due Process Clause of the 14th Amendment and thus applies to the states.
WHAT WAS CHALLENGED: Chicago required that all firearms in the city be registered but refused to register handguns, making it illegal to own a handgun.
- Caetano v. Massachusetts (2016)
ISSUE: Are stun guns protected weapons even though they did not exist at the time of the 2A?
HOLDING: “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding”
REASONING: Heller said that 2A even protects “arms … that were not in existence at the time of the founding” and that 2A doesn’t only protect weapons of war.
Other Constitutional Provisions that Pertain to Firearms Law
- First Amendment protections of firearms:
The 1st and 2nd Amendment have a lot in common. They are both designed to protect a natural right rather than to control government processes. By banning firearms on properties that host gun shows.
Efforts to ban gun shows entirely will virtually always fail because they are assemblies of individuals engaged in protected speech. However, can a gun ban be a way of curtailing the speech of the gun show participants. In Nordyke v. King (9th Cir. 2009), the court held that the purpose of the ordinance was to curtail gun violence and not to curtail speech and that it was a reasonable restriction under Heller. This is unsettled law and will be the subject of future litigation and appeals.
A large number of political activists, protesters, and attention seekers are openly carrying long guns in particular not for self-defense but to make a political statement, (i.e., “Look at me, I support the Second Amendment).
ISSUE: Is this protected speech or can an open carry ban be constitutionally applied to protect the public?
- Search and Seizure Issues and the Fourth Amendment: Privacy – Protection for Unreasonable Searches and Seizures
Text of Fourth Amendment: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”
- “Man with a gun” takedowns: Is simply carrying around a firearm lawfully over the shoulder reasonable suspicion of an intended mass shooting or imminent attack? Can someone be lawfully detained?
- No-knock raids because legal guns in home. Quinn v. Texas (2014) (Sect. 1983 lawsuit for non-knock forcible entry based on knowledge of legally owned firearms in the home. SCOTUS cert was denied allowing the lower court ruling stand that makes it constitutional to make one’s exercise of the 2A grounds to evade 4th Amendment protections.
- Records: keeping records of firearm ownership (ATF Form 4423’s Acquisition and Disposition Log kept for 20 years)
- The Taxing/Spending and Commerce Clauses: Federal power to regulate guns.
- Taxing Power and the NFA: National Firearms Act (NFA) was part of the 1934 Internal Revenue Code. The NFA levied tax manufacturing, selling and transferring certain classes of firearms and provided for regulatory powers related to the collection of those taxes.
- Commerce Clause: Congress can use its commerce power to regulate objects moving across state lines in interstate commerce (or commercial activities that are substantially related to interstate commerce).
U.S. v. Lopez, 514 U.S. 549 (1995): Gun Free Zones Act of 1990 prohibiting firearm possession near a school was not an activity that had enough effect on commerce and was thus unconstitutional. But it was remedied by revisions of 18 U.S.C. 922(q)(2)(A) requiring a jurisdictional element ensuring that interstate commerce was substantially effected. See US v. Dorsey, 418 F.3d 1038, 1046 (9th Cir. 2005).
- New and improved School Zone jurisdictional element: “It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.”
- State Constitutional Amendment
- Article I, section 27: “The people shall have the right to bear arms for the defence [sic] of themselves, and the State, but the Military shall be kept in strict subordination to the civil power”
- State v. Christian: Portland has banned loaded firearms in public and has a mandatory jail term of 30 days. CHL holders are an exception to the law (to carry a loaded gun in Portland you must have a CHL).
HOLDING: Since CHL holders can carry loaded guns, the Art. I, Section 27 facial challenge fails.
Text of holding:
Our analysis of defendant’s facial challenge is limited to whether the ordinance is capable of constitutional application in any circumstance. State v. Sutherland, 329 Or. 359, 365, 987 P.2d 501 (1999) ( “For a statute to be facially unconstitutional, it must be unconstitutional in all circumstances, i.e., there can be no reasonably likely circumstances in which application of the statute would pass constitutional muster.”). We begin by observing that the ordinance expressly allows a person to knowingly possess or carry a loaded firearm in a public place if the “person [is] licensed to carry a concealed handgun.” PCC 14A.60.010(C)(3). Thus, the ordinance is not a total ban on possessing or carrying a firearm for self-defense in public like those bans that this court held violated Article I, section 27, in previous cases. See Blocker, 291 Or. at 259, 630 P.2d 824 (prohibition of “mere possession” of billy club in public without specific regulation of use or manner of possession a violation of Article I, section 27); Delgado, 298 Or. at 403–04, 692 P.2d 610 (same holding with respect to mere possession of a switchblade knife in public: “The problem here is that ORS 166.510(1) absolutely proscribes the mere possession or carrying of such arms. This the constitution does not permit.”).
Here, therefore, it cannot be argued that “there can be no reasonably likely circumstances in which application of [the ordinance] would pass constitutional muster.” Sutherland, 329 Or. at 365, 987 P.2d 501. As just one example, the ordinance permits a person who is licensed to do so to carry a firearm for self-defense. PCC 14A.60.010(C)(3). We therefore reject defendant’s facial challenge to the ordinance under Article I, section 27.
 Full text of the English right: Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome (list of grievances including) … by causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law, (Recital regarding the change of monarch) … thereupon the said Lords Spirituall and Temporall and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation takeing into their most serious Consideration the best meanes for attaining the Ends aforesaid Doe in the first place (as their Auncestors in like Case have usually done) for the Vindicating and Asserting their ancient Rights and Liberties, Declare (list of rights including) … That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.