It is illegal for a person under the age of 21 to buy beer. Yet, a lawsuit filed by the National Rifle Association wants them to be able to buy a deadly machine that exists for the sole purpose of forcing a high-velocity slug of metal into another human being. Yesterday, one of the most conservative federal appeals courts in the country disagreed.

Two George W. Bush appointees to the United States Court of Appeals for the Fifth Circuit joined a unanimous revised opinion yesterday rejecting the NRA’s claim that 18 year-olds should be allowed to buy handguns from federally licensed firearm dealers. The opinion is complex and relies at least two alternative grounds for upholding the ban on gun sales to young people, but its discussion of how the founding generation would have treated this NRA’s absolutist view of gun rights is particularly significant:

The historical record shows that gun safety regulation was commonplace in the colonies, and around the time of the founding, a variety of gun safety regulations were on the books; these included safety laws regulating the storage of gun powder, laws keeping track of who in the community had guns, laws administering gun use in the context of militia service (including laws requiring militia members to attend “musters,” public gatherings where officials would inspect and account for guns), laws prohibiting the use of firearms on certain occasions and in certain places, and laws disarming certain groups and restricting sales to certain groups. It appears that when the fledgling republic adopted the Second Amendment, an expectation of sensible gun safety regulation was woven into the tapestry of the guarantee. . . .

Scholars have proposed that at the time of the founding, “the right to arms was inextricably and multifariously linked to that of civic virtu (i.e., the virtuous citizenry),” and that “[o]ne implication of this emphasis on the virtuous citizen is that the right to arms does not preclude laws disarming the unvirtuous citizens (i.e., criminals) or those who, like children or the mentally imbalanced, are deemed incapable of virtue.” This theory suggests that the Founders would have supported limiting or banning “the ownership of firearms by minors, felons, and the mentally impaired.” . . . . Notably, the term “minor” or “infant”—as those terms were historically understood—applied to persons under the age of 21, not only to persons under the age of 18.

The NRA will no doubt be distressed to learn that one of their biggest bugaboos — a government-run registry of firearm owners — was commonplace around the time of the founding. They will be even more dismayed to see it described in a judicial opinion strongly suggesting that such registries are constitutional. And this comes from a three-judge panel that includes two Bush-appointees.

Notably, the Fifth Circuit released an order today indicating that seven of the court’s 15 active judges voted to have the full court rehear the case. Had one more judge voted for such a rehearing, it would have taken place. Of these seven, only six actually indicated that they disagreed with the three-judge panel’s decision. The seventh judge, Obama appointee Stephen Higginson, was silent on whether he agreed with the panel’s decision. All six of the judges who called for gun regulation to be less strict than beer regulation were Republicans.

The NRA will no doubt appeal this decision to the Supreme Court, but the Fifth Circuit’s resolution of the case is a good sign that the justices will not strike down the ban on gun sales to young people. Beyond the fact that two Bush-appointees voted to uphold this law, the judges who called for it to be struck down include some of the most severely conservative judges in the country.

Judge Jerry Smith, for example, is the same judge who ordered a Justice Department attorney to write a letter he likely intended to use to embarrass President Obama. Judge Edith Clement sat on the board of a group that used to be one of the leading sponsors of corporate-friendly junkets for judges. And Judge Priscilla Owen once took thousands of dollars worth of campaign contributions from Enron when she sat on the Texas Supreme Court, and then wrote a key opinion reducing Enron’s taxes by $15 million.

The author of the pro-NRA opinion was Judge Edith Jones. Jones once told a liberal colleague to “shut up” during the middle of an oral argument, and she is one of the most frequent attendees of junkets for judges. Jones also wrote a dissenting opinion claiming that a woman who “was repeatedly propositioned, was groped and grabbed, [had] pornography [] placed in her locker, and [had] other employees broadcast[] obscene comments about her over the company’s public address system” did not experience sexual harassment.

So, while it is true that six judges did adopt the NRA’s view in this case, they are the kinds of judges who sit well to the right of even this Supreme Court.

Yesterday, a unanimous panel of the United States Court of Appeals for the Fourth Circuit upheld a Maryland law requiring most gun owners to obtain a permit before they may carry a firearm outside of their home, business or their property. In the process, the court articulated a legal standard that could go a long way towards reining in the kind of ubiquitously armed society favored by fringe lobbying groups such as the National Rifle Association.

The Supreme Court’s decision in District of Columbia v. Heller, which held for the first time in American history that the Second Amendment protects an individual right to own a firearm, was not a particularly coherent opinion. It lists numerous limits on the right to bear arms, but also holds that the single most deadly weapon in the nation — handguns – enjoy special constitutional protection above and beyond that enjoyed by other, less deadly weapons. Nearly 8 in 10 gun murders in the United States are committed with a handgun. Similarly, although the opinion forbids an outright ban on handguns inside the home, it provides much less clarity about the scope of the Second Amendment elsewhere. Much of the opinion strongly suggests that the right to bear arms is far less robust outside of a person’s own home.

The Fourth Circuit’s opinion threads this needle by applying a two-tiered legal standard to gun laws. The court suggests that a law which directly burdens the core right to keep a gun in the home is subject to “strict scrutiny,” the highest level of skepticism judges typically apply to laws. But a law which burdens gun possession outside of the home is subject to less skeptical review — what lawyers call “intermediate scrutiny.”

The implications of this shift is that it allows judges to be far more respectful to the concerns animating the elected officials who enact gun laws when they determine whether or not those laws are consistent with the Second Amendment. The court’s opinion highlights numerous arguments justifying Maryland’s limits on carrying guns in public. Among them:

• “Decreasing the availability of handguns to criminals via theft“: The court cites an explanation that “criminals in Maryland are constantly looking for ways to arm themselves with handguns, including by stealing them from others. It is not uncommon for criminals to obtain these guns during street altercations.”
• Preventing arguments from escalating into murders: Nearly half of all homicides occur after an argument or fight. As the court notes, reducing the number of guns in public places will decrease “the likelihood that basic confrontations between individuals would turn deadly.”
• Preventing fatal police errors: Contrary to the NRA’s claims that armed citizens will save lives by doling out vigilante justice to potential murders, the court notes that during a confrontation between police and a gunman “an additional person bearing a gun might cause confusion as to which side of the confrontation the person is on, which could lead to hesitation by the police officer and the potential for innocent victims, including the permit holder, innocent bystanders, and police officers.”
• Fostering good relationships between police and citizens: “If the number of legal handguns on the streets increased significantly, [police] officers would have no choice but to take extra precautions before engaging citizens, effectively treating encounters between police and the community that now are routine, friendly, and trusting, as high-risk stops, which demand a much more rigid protocol and a strategic approach.”
• Allowing police to focus their resources efficiently: “Increasing the number of people legally carrying handguns in the streets will also force [police] officers to spend more resources responding to reports about handgun sightings and engaging handgun carriers to ensure they are doing so lawfully.” Additionally, “[p]olice officers would also have a harder time identifying potential security risks if more people without good and substantial reason to carry a handgun were able to do so, making it more difficult to respond when necessary.”

To be clear, the Fourth Circuit’s conclusion that gun rights are less robust outside the four walls of a gun owner’s home is far from novel. Heller itself implies such a distinction, and previous court decisions drew a similar line to the one the Fourth Circuit relied on yesterday. If this line is ultimately upheld by the Supreme Court, however, it could go a long way towards keeping dangerous guns off America’s streets.

Currently, Georgia law prohibits carrying a gun in a bar or “place of worship. A bill that passed the state house late last week, however, would change this, permitting firearms in both locations.

Guns in bars is a particularly volatile combination. Although high profile, premeditated mass killings such as the Sandy Hook massacre draw an unusual amount of attention in public perceptions of gun violence, the reality is that most murders are committed under very different circumstances. According to Washington State Sociology Professor Jennifer Schwartz, “[n]early half of all homicides, committed by men or women, were preceded by some sort of argument or fight, such as a conflict over money or property, anger over one partner cheating on another, severe punishment of a child or abuse of a partner, retaliation for an earlier dispute, or a drunken fight over an insult or other affront.” So keeping guns away from environments where many people are engaged in heavy drinking can ensure that bar brawls and alcohol-induced arguments do not escalate into a homicide. Schwartz estimates that “40% of male offenders were drinking alcohol at the time” that they committed a homicide offense, and that about one in three female offenders were also engaged in drinking.

Although the Supreme Court recognized an individual right to carry firearms in District of Columbia v. Heller, that opinion allows guns to be prohibited in “sensitive places.”

In a speech to the conservative American Legislative Exchange Council two years ago, Texas Gov. Rick Perry (R) claimed that Social Security, Medicare and Medicaid all violate the Constitution. He’s now bringing that same crackerjack understanding of our nation’s founding document to the Second Amendment:

Texas Gov. Rick Perry believes that New York Gov. Andrew Cuomo’s effort to ban assault weapons would be deemed unconstitutional by the Supreme Court.

“I believe in the Constitution. I don’t think you limit free speech nor do you limit the second amendment,” Perry told ABC affiliate KTRK’s Ted Oberg on Thursday. “I think the Constitution is clear. Here we have the amendments to the constitution and we have the Bill of Rights. The Tenth Amendment says anything that’s not enumerated and not clearly laid out in the Constitution is reserved for the states and for the people. For me, just because I don’t like something doesn’t mean I will change the U.S. Constitution.”

“I would suggest to you they can try, but there will be a lawsuit that goes forward to the U.S. Supreme Court that finds those kinds of things unconstitutional,” Perry added.

Perry was referring to Cuomo’s intention to pursue “the toughest assault weapon ban in the nation.”

Perry, of course, is wrong about what the Second Amendment permits. Indeed, even conservative Justice Antonin Scalia conceded in his opinion in District of Columbia v. Heller that “dangerous and unusual weapons” of the sort not “in common use” by the public can be regulated or banned.

A Kentucky sheriff whose views track those of a fringe militia group announced this weekend that he would not enforce any gun law he deemed “unconstitutional,” which, apparently includes any gun law at all, including a ban on AK-47s. Jackson County Sheriff Denny Peyman said during a press conference Saturday:

You’ll understand me very well when you leave here today, and why we’re all still gonna have our guns here in Jackson.

The job of a sheriff, I’m responsible for the people inside this county. … I couldn’t justify, if Obama passes this, it doesn’t matter what he passes. The sheriff has more power than the federal people. They need to go back and they study that. We’re a commonwealth. I can ask the federal people to leave. They have to leave. I can ask state people to leave. They have to leave. What I’m saying is this is our home. I’m an elected official. The highest elected official, from this point on.

Peyman’s assertion that sheriffs are the highest law enforcement authorities – above federal authorities — mirrors the philosophy of an extremist group of current and former police officers known as the Oath Keepers, who vow to defy any law or order that violates their radical view of the Constitution and fear that government officials will “disarm the American people,” “confiscate the property of the American people, including food and other essential supplies,” and “blockade American cities, thus turning them into giant concentration camps.” Peyman did not return a call to ask whether he was part of the group. Describing his view of the Constitution, Peyman defended even those who carry guns in violation of existing laws:

When we come into a group, I look at people and I know who packs and who doesn’t pack, some of them legally and some of them illegally, but that’s their right. The Second Amendment makes that very clear. And our forefathers made that very clear.

He told Fox’s Greta Van Susteren Monday night that the Constitution is like the Bible, in that both are subject to one rigid interpretation:

Well, it’s just like, if you take out part, it’s kind of like the Bible, either you believe it or you don’t believe it. The Constitution, either you believe it or you don’t. You either live by it or you don’t.

Unfortunately, Peyman appears to have appointed himself the sole arbiter of what that document means.

On Friday, the United States Court of Appeals for the Fourth Circuit upheld a federal law prohibiting the possession of firearms while being “illegally or unlawfully in the United States.” In doing so, they join three other circuits which also upheld the same ban. The unanimous panel included Judge Paul Niemeyer, who may be the most conservative judge on this court, and Judge Diana Gribbon Motz, who is one of the court’s most thoughtful liberals. So it appears unlikely that the growing consensus — that banning undocumented immigrants from carrying firearms does not violate the Second Amendment — will be disturbed even by the pro-gun Roberts Court.

The most significant part of the Fourth Circuit’s decision, however, isn’t its holding; it is the way that it reached that holding. Last year, the severely conservative Fifth Circuit issued an opinion suggesting that undocumented immigrants may not simply be outside the scope of the Second Amendment, but that they also cannot invoke the Fourth Amendment’s prohibition on “unreasonable searches and seizures.” Both the Second and the Fourth Amendment refer to “the right of the people” to bear arms or be free from overbearing police actions, and the Fifth Circuit reasoned that undocumented immigrants are not part of “the people.”

Friday’s decision, by contrast, largely relies on a different analysis that does not threaten immigrant’s right to be free from unlawful searches and seizures:

[W]e need not limit our analysis to the scope of the term “the people” and thereby become enmeshed in the question of whether “the people” includes illegal aliens or whether the term has the same scope in each of its constitutional uses. This is because Heller concludes, through a distinct analysis, that the core right historically protected by the Second Amendment is the right of self-defense by “‘law-abiding, responsible citizens.’” . . .

Even though the Heller Court stressed that the core right of the Second Amendment protects law-abiding members of the political community, it did not face a law prohibiting firearms possession by a particular class of persons. Nonetheless, we can employ the historical analysis it prescribed to apply its observations to this case and thus to reach the conclusion that we do—that illegal aliens do not belong to the class of law-abiding members of the political community to whom the Second Amendment gives protection.

To be sure, there is a lot not to like about the court’s core conclusion that people who enter the country illegally carry with them a taint of lawlessness sufficient to change their legal rights. Nevertheless, the Fourth Circuit’s reasoning has far fewer implications than other court decisions which suggested that police have free rein to treat undocumented immigrants however they please.

The Supreme Court’s 2008 decision in District of Columbia v. Heller held for the first time in American history that the Second Amendment protects an individual right to carry a firearm. Yet even that decision makes clear that this is not a right to “carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Heller permits concealed carry bans. It allows bans on “dangerous and unusual” weapons such as machine guns or assault rifles. And it allows laws banning “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.

Heller also makes clear, however, that the single most deadly kind of firearm sold in the United States — handguns — enjoy special constitutional status. As “the most preferred firearm in the nation to `keep’ and use for protection of one’s home and family,” Justice Scalia wrote in Heller, handguns cannot be banned. Since Heller, lower courts relied on its reasoning to strike lesser regulation of handguns as well.

Handguns are not simply the most commonly chosen weapon for lawful firearms owners, however, they are also the weapon of choice for murderers. According to the FBI, firearms accounted for approximately 47,500 murders in 2001-2005. Nearly 8 in 10 of these murders involved a handgun:

So there are any number of sensible reforms, such as assault rifle bans or restrictions on concealed carry, which Congress could enact right now. Until the Supreme Court removes the special protections accorded to handguns, however, lawmakers will have to fight the most dangerous weapon in the nation with one arm tied behind their backs.

A divided three-judge panel of the United States Court of Appeals for the Seventh Circuit struck down an Illinois law yesterday which prohibited most people from carrying loaded weapons outside of the home. The law prohibits most individuals from carrying a “loaded, immediately accessible—that is, easy to reach—and uncased” firearm, with exceptions for “police and other security personnel, hunters, and members of target shooting clubs.” The law also contained broad exemptions allowing someone to carry a firearm on their own property or in their own home, the later of which is required under the the Supreme Court’s decision in District of Columbia v. Heller.

Heller established a robust right to gun possession within the confines of the home, while also permitting a wide range of firearm regulation beyond the home’s four walls. Although the Seventh Circuit’s decision deemed the fairly broad Illinois law to exceed this wide range, it also makes clear that lawmakers retain a great deal of authority over firearms:

[W]hen a state bans guns merely in particular places, such as public schools, a person can preserve an undiminished right of self-defense by not entering those places; since that’s a lesser burden, the state doesn’t need to prove so strong a need. Similarly, the state can prevail with less evidence when, as in Skoien, guns are forbidden to a class of persons who present a higher than average risk of misusing a gun. And empirical evidence of a public safety concern can be dispensed with altogether when the ban is limited to obviously dangerous persons such as felons and the mentally ill. Illinois has lots of options for protecting its people from being shot without having to eliminate all possibility of armed self-defense in public. . . .

Apart from the usual prohibitions of gun ownership by children, felons, illegal aliens, lunatics, and in sensitive places such as public schools, the propriety of which was not questioned in Heller (“nothing in this 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”), some states sensibly require that an applicant for a handgun permit establish his competence in handling firearms. A person who carries a gun in public but is not well trained in the use of firearms is a menace to himself and others. States also permit private businesses and other private institutions (such as churches) to ban guns from their premises. If enough private institutions decided to do that, the right to carry a gun in public would have much less value and might rarely be exercised—in which event the invalidation of the Illinois law might have little effect, which opponents of gun rights would welcome.

The court concluded its opinion by staying its own decision for 180 days, “to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.”

The Supreme Court’s 2008 decision in District of Columbia v. Heller held that the Second Amendment provides an individual right to carry a firearm under certain circumstances, but this right is far from unlimited. As Heller explained, “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 banning “dangerous and unusual weapons” are entirely consistent with the Constitution. Similarly, although Heller established a robust right to gun possession within the confines of the home, it also permitted a wide range of firearm regulation beyond the home’s four walls.

In an opinion upholding a New York law that prevents most people from obtaining a concealed firearm license unless they can demonstrate “a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession,” the United States Court of Appeals for the Second Circuit explained that lawmakers’ power to regulate guns outside the home remains quite robust:

New York’s licensing scheme affects the ability to carry handguns only in public, while the District of Columbia ban [in Heller]applied in the home “where the need for defense of self, family, and property is most acute.” This is a critical difference. The state’s ability to regulate firearms and, for that matter, conduct, is qualitatively different in public than in the home. Heller reinforces this view. In striking D.C.’s handgun ban, the Court stressed that banning usable handguns in the home is a “policy choice[]” that is “off the table,” but that a variety of other regulatory options remain available, including categorical bans on firearm possession in certain public locations . . . .

[W]hile the state’s ability to regulate firearms is circumscribed in the home, “outside the home, firearm rights have always been more limited, because public safety
interests often outweigh individual interests in self-defense.” There is a longstanding tradition of states regulating firearm possession and use in public because of the dangers posed to public safety. During the Founding Era, for instance, many states prohibited the use of firearms on certain occasions and in certain locations.

Though the Second Circuit opinion clearly indicates that firearm regulation outside the home will be subject to more rigorous judicial scrutiny than ordinary economic regulations, it also makes clear that lawmakers have a great deal of discretion in enacting gun laws provided that those laws do not intrude on the core right to self-defense in the home.