These Gun Control Proposals are Irrational — and Unconstitutional

In the wake of the shootings at Newtown and Aurora, gun violence in America has once again become a hotbed of debate in Washington. Even months after these tragedies, events that spark the fire of the gun control conversation seem to happen almost constantly. Both sides of the debate need to come to the table with an informed mind that is open to suggestions on how to curb gun violence, but this involves carefully looking at the proposals put into the public domain.

It’s important to distinguish that the federal government has the authority to direct and implement nationwide gun control laws. In Supreme Court cases such as District of Columbia vs. Heller and McDonald vs. City of Chicago, the Court ruled that the Second Amendment provided a “fundamental right” to bear arms, a right that could not be infringed upon by state or local governments.

While this is certainly a victory for Second Amendment enthusiasts, it instills a different sort of anxiousness: the laws are under the control of the federal government. Perhaps the greatest benefit is that a “fundamental right” requires the burden of proof to be on the government. Congress cannot pass any constitutional gun control legislation without proving a “compelling need” for the regulations in question.

A ban on high capacity magazines is one of the notable proposals in debate. ("High capacity" doesn't have a strict definition, but in most legislation around magazine bans, the 10-round limit is the proposed benchmark.) While this ban wouldn’t affect high capacity magazines already in a citizen’s possession, it would prevent the sale or manufacture of more inside the U.S. This ban is one of the most common topics for debate in gun control legislation in Congress, where some members incorrectly assert that high capacity magazines are to blame for the severity of the massacre at Newtown.

However, the Second Amendment guarantees a fundamental right, and Congress would fail to meet the “compelling need” with this ineffective law. There are several problems with ban on high capacity magazine guns. Firstly, any gun owner worth his salt can make a high capacity magazine gun in his garage with some scrap metal and a high quality spring, or could learn how from a simple YouTube video.

Secondly, it would be impossible to confiscate the millions of high capacity magazines in the country; many semiautomatic pistols are configured to accept magazines holding 11 or more rounds. One of the most popular handgun brands is Glock, but unless you buy their sub-compact version, not a single one will accept fewer than 12-round magazines.

The implications are that a huge proportion of semiautomatic handguns will become effectively worthless. While laws banning 20-round magazines might be effective, the current laws in Washington and New York and the current federal debates only address banning 10 rounds.

These laws are clearly ineffective, therefore they don’t pass the Supreme Court's "compelling need” test.

A ban on “assault weapons,” a term used by many but understood by few, is another common proposal. Though many supporters struggle to define an “assault weapon,” it’s generally and incorrectly accepted to be a semi-automatic rifle that looks like an assault rifle (example: an AR-15).

The FBI reported that 130,000 U.S. citizens were murdered in 2011, the most recent data available. Only 323 were killed with rifles of any type, not necessarily semi-automatic. This incredibly small proportion leads to the conclusion that there is no “compelling need” for a law that would affect such a small number of firearms in use.

Finally, background checks are a frequent mention on the congressional floor. In theory, there is little to object to in a law that might prevent criminals from perpetuating gun violence. If a law that causes only minimal time, energy or monetary commitment can stop guns from being sold to criminals, why wouldn't one pass it? However, this regulation is impossible to defend. In 2010, the National Instant Criminal Background Check System (NICS) denied 77,000 potential gun purchases. Out of that number, only 44 were prosecuted for the serious crime of buying a weapon illegally. Thirteen were convicted. At a success rate of .002%, criminal background checks do not stop guns from reaching the hands of criminals, and may indeed deny guns to law-abiding citizens. 

Clearly, expanded criminal background checks do not justify a “compelling need,” given their ineffectiveness.

Even the strongest gun rights advocates are willing to discuss rational and constitutional legislation about gun control, but until an effective proposal that demonstrates a “compelling need” for its policies is brought to the table, the federal government has no right, authority or constitutional power to infringe upon the right to bear arms.

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Max Conger

Max is a 1L student at the University of Missouri School of Law. The only topic he can discuss with authority is firearms, so expect to hear a lot of that from him.

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