A Gun's Range, or How Far Does the 2nd Amendment Reach?

Kathleen Reagan
By Kathleen A. Reagan, Professor of Law

The 2nd Amendment to the Constitution of the United States received little attention from the United States Supreme Court until recently, with two landmark decisions: District of Columbia vs. Heller, 554 US 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742 (2010). (In brief, Heller found that the 2nd Amendment protected the individual’s right to keep and bear arms for self-defense, and McDonald held that this right applied to the states through the 14th Amendment.) The inattention to the 2nd Amendment will hopefully change soon.

Because Heller declined to opine on such matters as the standard of review to be applied in future cases, subsequent litigation has focused on the reach of the 2nd Amendment to the states through the 14th Amendment. A number of cases now pending in federal circuit courts contain different interpretations of the scope and meaning of the constitutional admonition, “the right of the people to keep and bear arms shall not be infringed,” and so future cases may provide guidance from the Supreme Court—if it grants certiorari. What the states may do with Supreme Court direction remains to be seen, but the inarguable point is that further direction from the Supreme Court is sorely needed. Massachusetts precedent serves as a teachable moment for those who are looking to divine future Supreme Court decisions in this regard.

The Supreme Court rejects Massachusetts’s attempt to limit Heller

The Massachusetts Supreme Court directly interpreted the reach of the 2nd Amendment to the Commonwealth of Massachusetts, first in Commonwealth vs. McGowan, 464 Mass.232 (2013), and next in in Commonwealth v. Caetano, 470 Mass. 774 (2015), using the Heller and McDonald decisions. McGowan held that the storage law in the Massachusetts statute regulating firearms, M.G. L. Chapter 140, Section 131L(a),1 was constitutional because it did not interfere with the ability of a licensed gun owner to carry or keep a firearm under his or her immediate control for purposes of self-defense in the home, which was the limit of the Supreme Court precedent. Because this statute was aimed at keeping those who were not licensed to possess or carry firearms from gaining access to them, the court ruled that it fell outside the scope of the 2nd Amendment; and further, because it fell outside the scope of the 2nd Amendment, the court drew an inference from Heller that presumptively lawful regulations that burdened conduct outside the scope of the 2nd Amendment were not subject to “heightened scrutiny” afforded other constitutional protections in the Bill of Rights.

In Caetano, the Massachusetts Supreme Judicial Court then applied the McDonald and Heller precedents so as to find that the use of a stun gun for self-defense purposes also did not fall within the protections of the 2nd Amendment. The court offered three rationales for its ruling: first, that stun guns were not in common use when the 2nd Amendment was enacted; 2nd, that stun guns were “unusual” because they were “modern,” and so outside the scope of the 2nd Amendment; and third, that since only those weapons useful in warfare were protected,2 and since nothing in the record suggested that stun guns were readily adaptable for use in the military, they fell outside the scope of the 2nd Amendment’s protections.

The United States Supreme Court, in a per curiam six-page decision, was not amused by the mishandling of Heller and made short work of each of the offered rationales. See Caetano v. Massachusetts, 136 S. Ct. 1027 (2016). The majority responded that Heller clearly stated that the 2nd Amendment “extends...to…arms…that were not in existence at the time of the founding.” See Heller, 554 US at 582. This also refuted the Massachusetts court’s 2nd rationale, which equated “unusual” with those not “in common use,” since the weapons need not have been in existence at all, let alone common. The last reason offered—that stun guns were not readily adaptable by the military—again went directly against a central holding in Heller, which specifically rejected the proposition “that only those weapons useful in warfare are protected [by the 2nd Amendment].” See Heller, 554 U.S. at 624–625.

The concurring opinion authored by Justice Alito and joined by Justice Thomas commented unsparingly: “Although the [Massachusetts] Supreme Court professed to apply Heller, each step of its analysis defied Heller’s reasoning.” Caetano, 136 S. Ct. at 1030.

Constitutionality of state regulatory schemes

States looking to regulate lawful firearms possession and carry have still another avenue to limit 2nd Amendment application, which is the notion that the 2nd Amendment’s reach allows a local authority to decide whether (1) the applicant is a “suitable person” to bear firearms, and (2) the “purpose” of the applicant’s request to carry firearms for self-defense is an appropriate purpose, and thus requiring an applicant to show that his or her own needs are distinguished from the general public. This is the statutory scheme in Massachusetts; where a licensing official denies the request, his or her decision can only be overturned if it is shown to have no reasonable basis or is arbitrary, capricious, and an abuse of discretion. Chief of Police of Shelburne v. Moyer, 16 Mass. App. 543, 546 (1983).

The constitutionality of such an additional layer of state-required justification was addressed by the Ninth Circuit case of Peruta v. County of San Diego, 742 F. 3d. 1144 (9th Cir. 2014). There, the court found a similar regulatory scheme in the County of San Diego to be unconstitutional when viewed against the specific backdrop of California state law and other California counties’ regulations. A typical applicant in San Diego could not obtain a license to conceal carry a firearm for self-defense purposes because the regulation required that the applicant distinguish his or her specific need using "a set of circumstances that distinguish [him] from the mainstream and cause [him] ... to be placed in harm's way." Peruta, 742 F. 3d. at 1169. This meant that a typical citizen fearing for his safety could not by definition distinguish himself from the mainstream. The few exemptions to this regulation (law enforcement, military personnel, private property/businesses) did not cure the overall problem. The court used a First Amendment analogy to highlight the problem that law abiding citizens faced: it was as if a regulation was passed that banned all political speech, but exempted from this restriction “particular places (like private property), and particular situations (like the week before an election). Although these exceptions might preserve small pockets of freedom, they would do little to prevent destruction of the right to free speech as a whole.” Id. at 1170.

Another decision, Pineiro v Gemme, 937 F. Supp. 2d. 161 (D. Mass. 2011), considered in preliminary motions whether an attorney, Hector Pineiro, who applied for an unrestricted license to carry where he alleged facts that “distinguished” his need for self-defense from the general public, was unconstitutionally denied the requested permit. The federal district court refused to abstain and denied the City of Worcester’s motion to dismiss. The federal case was eventually resolved on other grounds (limited immunity of police officials), but the attorney was successful in getting his unrestricted license to carry.

No United States Supreme Court case has yet looked squarely at the issue of whether these local licensing schemes that additionally burden a request by a law-abiding citizen (an otherwise suitable person to carry firearms) to carry for self-defense purposes outside the home pass constitutional muster. Such a review will hopefully shed additional light on the scope of the 2nd Amendment. Firearms-related litigation has not yet found its range, but with luck, it soon will.

Kathleen A. Reagan is Professor of Law for Concord Law School at Purdue University Global. Her private law practice includes representing clients in the area of gun regulation. The views expressed in this article are solely those of the author and do not represent the view of Concord Law School at Purdue University Global, including its parent companies, subsidiaries, and affiliates.

L General Laws c. 140 s. 131 L(a) states: “It shall be unlawful to store or keep any firearm, rifle, or shotgun including but not limited do, large capacity weapons, or machine guns in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render the firearm inoperable by any person other than the owner or other lawfully authorized user. For purposes of this section, such weapon shall not be deemed stored or kept if carried by or under the control of the owner or other lawfully authorized person.”
2 The recent decision of Kolbe v. Hogan, 849 F. 3d. 114 (4th Cir. 2017), found so called “assault weapons” including the widely popular (i.e. in common civilian use) and rather low caliber (for hunting purposes) sporting rifle the AR-15 as being most useful in military service and so therefore outside the scope of the Second Amendment. In order to reach that conclusion, the appeals court en banc had to vacate the opinion of a three judge panel which found otherwise. Given the opposing applications of McDonald and Heller and now Caetano’s language about the reach of the Second Amendment to weapons that have both military and nonmilitary uses, it is hard to believe that precedent is being applied consistently. To paraphrase from the movie The Princess Bride, “I do not think that word [military] means what you think it means."

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