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Bill Straub

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January 20, 2013 - 12:10 am

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.

The situation changed as a result of District of Columbia v. Heller, a 2008 case that challenged the constitutionality of the Firearms Control Regulations Act of 1975, which imposed the handgun restriction on D.C. residents. Scalia and the majority in this case held that individuals maintain a right to have a gun under the Second Amendment for purposes like self-protection even if such possession has nothing to do with belonging to a militia.

But the decision didn’t end there. Scalia opened the door to some forms of unspecified regulation, asserting that the Second Amendment did not grant an unlimited right to own a firearm.

“Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession 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,” Scalia wrote.

Retired Justice John Paul Stevens, who dissented in the case, nonetheless said recently that the Heller decision failed to close the door on some forms of regulation.

“Prohibitions on carrying concealed weapons, on the possession of firearms by felons or the mentally ill and laws forbidding the carrying of firearms in sensitive places, such as schools and government buildings, or imposing conditions and qualifications on the commercial sale of arms, are specifically identified as permissible regulations,” Stevens said.

Several gun-control cases have cropped up in the federal courts since Heller. Last October, the U.S. Fifth Circuit Court of Appeals affirmed the lower court dismissal of a suit brought by the National Rifle Association challenging a federal law prohibiting anyone under the age of 21 from purchasing a handgun from a dealer. A unanimous panel found that “preventing handguns from easily falling into the hands of 18-to-20 year olds remains critical to public safety.”

Also read: 

The Hole in One of Biden’s Gun Scare Stories

Washington freelancer Bill Straub is former White House correspondent for Scripps Howard News Service.
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We have no reason to trust the U.S. Supreme Court with a "decision" regarding the Second Amendment and Obama's "gun control". Five justices have already struck down the Fourth Amendment and will most probably use the same reasoning to strike down the Second Amendment. It is amazing that a few justices can move against the U.S. Constitution.
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