The Watcher Cat

The Watcher Cat

Tuesday, January 15, 2013

Federalism in Action

As I wrote in the wake of the Newton mass shooting, I believe that the Second Amendment affords states effectively plenary power over gun regulation. While the Supreme Court effectively deleted the "well regulated militia" clause from the Second Amendment in McDonald v. City of Chicago, the Court in the predecessor case, District of Columbia v. Heller, did leave a considerable amount of leeway for the states or the federal government to regulate guns:
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 2817*2817 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.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U.S., at 179, 59 S.Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons."
128 S. Ct. at 2816-2817.

The majority notes in a footnote that "We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive." (n. 26). I mention this because today, the New York State Legislature passed and the Governor signed, what the New York Times describes as "a sweeping package of gun control measures, significantly expanding a ban on assault weapons and making New York the first state to change its laws in response to the mass shooting at a Connecticut elementary school."

The new law provides:
The expanded ban on assault weapons broadens the definition of such weapons, banning semiautomatic pistols and rifles with detachable magazines and one military-style feature, as well as semiautomatic shotguns with one military-style feature. New Yorkers who already own such guns can keep them but will be required to register them with the state.

The legislative package, which Mr. Cuomo on Monday said he believed would be “the most comprehensive package in the nation,” will also ban any gun magazine that can hold more than 7 rounds of ammunition — the current limit is 10 rounds. It will also require background checks of ammunition buyers and automated alerts to law enforcement agencies of high-volume purchases.


The most significant new element will require mental health professionals to report to local mental health officials when they believe that patients are likely to harm themselves or others. Law enforcement officials will then be authorized to confiscate any firearm owned by a dangerous patient; therapists will not be punished for a failure to report such patients if they acted “in good faith.”

The legislation will extend and expand Kendra’s Law, which empowers judges to order mentally ill patients to receive outpatient treatment. And it will require gun owners to keep weapons inaccessible in homes where a resident has been involuntarily committed, convicted of a crime or is the subject of an order of protection.

The legislation will increase penalties for multiple crimes committed with guns, will require background checks for most private gun sales and will create a statewide gun-registration database. It also includes a so-called Webster provision, named for the shooting deaths of two firefighters who were ambushed in Webster, near Rochester, just before Christmas. The provision will mandate a life sentence without parole for anyone who murders a first responder.

And, in response to a controversy that erupted after The Journal News, a daily newspaper in White Plains, published the names and addresses of handgun permit holders in Westchester and Rockland Counties, the legislation will prohibit disclosure of the names in the new statewide gun-registration database, and will allow individuals to exempt their own names and addresses from being disclosed by counties that have such databases.
That last bit is a sop to those gun owners who felt that recent publication of such registrants stigmatizes them, and can even endanger their safety.

Overall, I believe this is a good bill. The regulations do not come anywhere near the blanket ban struck down in Heller, and track the areas of legitimate regulation allowed Congress by the Supreme Court in that decision, let alone the greater scope the states should be permitted. In the wake of McDonald, that is prudent. Moreover, it is a rational response to the fact that, in mass shooting cases in the last 30 years, "[o]f the 142 guns possessed by the killers, more than three quarters were obtained legally. The arsenal included dozens of assault weapons and semiautomatic handguns." (My emphasis.) Action was necessary.

But is it enough?

Of course not; laws can never eliminate the problem, especially as we have a violence-soaked culture, one which equates gun ownership with masculinity, in ads and video games. Beyond the fact that these games are protected speech under the First Amendment,the NRA's hypocritical blaming of video games has it backwards. As Paul Tassio convincingly argues:
Here’s a hint. It’s because we love real life guns so much as a society that violent shooter games are so popular. A society that is inherently fascinated with violence creates violent media, it’s not the other way around. And say what you will about this debate, but a kid playing a video game where he shoots a gun is safer than a kid who is shooting an actual gun, even just at inanimate objects. Compare a kid playing Call of Duty five hours a day to one who goes to the shooting range for the same duration. Which one might be better at hitting real world targets? Adam Lanza was a crack shot, and it’s more than a little bit likely it was from his time spent with his mom on the shooting range than it was from his hours spent playing Starcraft.
In short, we need to work on changing the culture not through the coercive power of the law, but by the persuasive power of speech, and by rejecting the Hobbesian world view of the gun lobby.

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