WASHINGTON – The fate of President Obama’s new and controversial gun-control initiative, which includes provisions to ban certain assault rifles and clips carrying more than 10 rounds of ammunition, may come down to whether they meet a U.S. Supreme Court standard of “dangerous and unusual weapons.’’
Federal courts over the years have consistently held the right to bear arms as extended under the Second Amendment to the U.S. Constitution is not total and is open to some restrictions and regulation. The open question is whether the president’s proposals, should they pass Congress and become law, exceed constitutional boundaries.
In 2008, while asserting that a law prohibiting residents of Washington, D.C., to own handguns violates the Constitution, a majority of the court nonetheless signed on to an opinion written by Justice Antonin Scalia, who said certain restrictions could pass constitutional muster. He made note of the “historical tradition’’ of prohibiting “dangerous and unusual weapons.’’
Anti-gun groups are confident the president’s proposals can meet any test. The Brady Campaign to Prevent Gun Violence noted in a statement that, “Despite more than 500 challenges to gun laws nationwide by the gun lobby and gun criminals, courts have overwhelmingly upheld the validity of gun laws keeping guns away from dangerous people and restricting public gun possession.’’
But Sen. Jim Inhofe (R-Okla.) and others maintain that several Obama initiatives, including a proposed ban on so-called assault weapons, violate the Second Amendment right to keep and bear arms, and Inhofe vows to oppose the effort to impose the restrictions on any level.
“Statistics demonstrate that a ban on particular weapons will not significantly decrease crime,’’ Inhofe said. “Such a ban will, however, significantly decrease our rights guaranteed by the Constitution. The text of the Constitution clearly confers upon an individual the right to bear arms – and not just for the purposes of hunting as many liberals will claim. Our Founders believed that the people’s right to own guns was an important check on the powers of the government and ‘necessary to the security of a free State.’ I couldn’t agree more and I stand firm in my support of this right.”
The high court ruled in 1939 that certain types of weapons could be regulated under the Second Amendment. The case titled U.S. v. Miller involved a violation of the National Firearms Act of 1934, which required firearms, like Thompson submachine guns and sawed-off shotguns, to be registered with the predecessor to the Bureau of Alcohol, Tobacco, Firearms and Explosives.
The defendants in the case were cited for transporting an unregistered shotgun with a barrel less than 18 inches in length across state lines. The case was thrown out by a federal district judge who held the law violated the Second Amendment.
But the high court reversed. Writing for a unanimous court, Justice James C. McReynolds wrote, “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”
That decision held up – it proved to be the only Supreme Court case involving the Second Amendment for almost 70 years. During that period the federal government adopted several regulatory measures, including the Gun Control Act of 1968 that, among other things, required the licensure of gun merchants, a move that effectively ended the practice of selling guns through the mail.