The terrible shootings in Gilroy, El Paso, and Dayton in the past week have renewed cries for Washington, D.C., to do something. In our federal system, the most effective responses will have to come from state and local governments, which have the primary responsibility and the broadest tools for reducing violent crime. But the president and Congress can act in one area, the rules for buying guns.
President Trump this week seized on the idea of expanding background checks for firearm purchasers. Before a Wednesday visit to Dayton and El Paso, where weekend shootings left 31 dead, Trump said there “was great appetite for background checks.” A proposal from Senators Patrick J. Toomey (R., Pa.) and Joe Manchin (D., W.Va.) would expand the reviews to private transactions that were advertised publicly or took place at gun shows. Expanding background checks remains popular with the public, with about 90 percent, including eight in ten Republicans, in support.
According to media reports, however, the National Rifle Association has criticized the idea. Some conservatives have questioned whether such rules are effective, noting that the shooters in all three cases would still have gotten hold of their high-powered weapons even if Toomey-Manchin were on the books. Neither side cited empirical studies that can answer the real question: Would expanded background checks deter future mass shooters — as well as ordinary murderers, who take far more lives, or foreign terrorists — from acquiring and using high-powered weapons?
But what conservatives should not worry about is whether expanded background checks would intrude on the Second Amendment. Because identity politics is all the rage these days, I suppose I should make clear that I am no gun-control advocate, even though I am a law professor at the University of California at Berkeley. I may be one of the few unfortunates who live within the city limits of the People’s Republic of Berkeley who own guns — though that may be because I grew up in Pennsylvania, where some schools have a day off at the start of hunting season. There are probably few other members of the Faculty Club who also belong to the Richmond (Calif.) Rod and Gun Club — if there are, I haven’t seen them at the range. I am sure that writing this op-ed will spark a movement to petition the Berkeley City Council to have me expelled from the city — again.
But unfortunately for most Berkeley residents, the Second Amendment declares: “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In Heller v. District of Columbia (2008), the Supreme Court held that the Second Amendment protects an individual right to keep and bear firearms, rather than just a collective right to a well-armed militia. The “inherent right to self-defense,” the Court found, is “central to the Second Amendment right.” As a result, the District of Columbia could not ban handgun possession in the home.
The Court also emphasized, however, that the Second Amendment is not “unlimited.” It is not a right “to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Instead, the Court provided examples of permissible regulation of firearms consistent with the Second Amendment. The right does not “protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns,” nor does it grant an unregulated right to carry concealed firearms. These limits were “supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”
With regard to background checks, the Court included examples of “presumptively lawful regulatory measures.” According to the majority, “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.”
Although the Court subsequently found that the 14th Amendment incorporates the Second Amendment against the states in McDonald v. City of Chicago (2010), the Supreme Court has not decided another case on the Second Amendment. Several federal appeals courts, however, have adopted a two-part test to review limitations on firearm possession. These courts ask whether “a particular provision impinges upon a right protected by the Second Amendment.” In applying this first step, the courts have found that a regulation that is “long-standing” is “presumptively lawful” because it has been long accepted by the public and unlikely to burden a constitutional right. Second, the courts ask whether “the provision passes muster under the appropriate level of scrutiny.” In applying this crucial second step, these circuit courts have chosen to apply intermediate, rather than strict, scrutiny, which allows the government to engage in a reasonable balancing between public safety and the individual right.
Expanding federal background checks should survive the first step of this post-Heller analysis. To be sure, the federal background-check system does not appear to be a long-standing regulation; it began with the 1993 Brady Handgun Violence Prevention Act. The background-check system, however, is merely a means to carry out regulations that are long-standing. Enacted in 1968, the federal Gun Control Act prohibits the transfer of handguns to, among others, convicted felons and anyone under 21.
Neither the Supreme Court nor the federal courts of appeals have held these restrictions on possession to violate the Constitution. As the Supreme Court observed in Heller, its decision does not “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” If these restrictions do not violate the Second Amendment, it is difficult to find that a background-check system would violate it, as a background-check system is only a means of enforcing the underlying rules. Indeed, the background-check system would appear to be a vital mechanism to ensure that firearms sellers do not violate the terms of the national Gun Control Act.
Even if a court believed that the expanded background-check system failed the first step, courts of appeals would still uphold it if it survived intermediate scrutiny. When applying intermediate scrutiny, a court will ask whether a regulation is “substantially related to an important governmental objective.” Preventing the transfer of firearms to the categories of individuals prohibited by the Gun Control Act would qualify as an important governmental objective. Congress clearly seeks to prevent guns from coming into the possession of individuals who might misuse them for criminal purposes or might lack the appropriate level of personal responsibility and self-control. When Heller returned to the lower courts, the D.C. Circuit found that the governmental objectives served by registration requirements — protection of law-enforcement officers and crime control — satisfied the important governmental objective requirement. Those interests are among the same ones advanced by the proposed expanded background checks now.
In addition to an important governmental objective, the intermediate-scrutiny test requires a law be “narrowly tailored” to achieve that objective. Narrow tailoring requires that the government objective would be achieved “less effectively” without the regulation, and the means chosen are not substantially broader than necessary. No court has invalidated the existing background-check system as failing the intermediate scrutiny test to achieve the current goals of the Gun Control Act. The fit of the background-check system will not go awry because Congress has expanded it to include private transactions. (Indeed, the Toomey/Manchin proposal would not even cover all private transactions — only the transfer of handguns at gun shows and sales where commercial advertising was involved.) Indeed, the expansion of the background-check system will more effectively achieve the purposes of the 1968 Gun Control Act.
Conservatives might have a second concern with expanded background checks, not over the individual right at stake, but whether the government should have the power to regulate firearm transactions that occur wholly within a state. They have a better point here than on the Second Amendment. The Constitution appears to give the federal government the authority only “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” As the Framers made clear, and the written document confirms, the Constitution grants only a limited list of enumerated powers to the national government, so critics could claim that background checks cannot extend to purely intrastate sales of firearms.
I have a great deal of sympathy for this limited scope of the interstate-commerce clause. Nevertheless, the Supreme Court reads the clause to allow federal regulation of effectively any commercial transaction, regardless of whether it crosses state borders, because it has an effect on interstate commerce. In terms even more sweeping than federal firearms regulations, the Controlled Substances Act prohibits the sale of certain drugs, anywhere, anytime, in virtually any amount, regardless of whether the transaction is private, intrastate, or profitless. In Gonzales v. Raich (2005), the Court held that the act constitutionally prohibited a gift of homegrown marijuana between two Berkeley residents (pot is okay in my town, just not guns). Even Justice Antonin Scalia agreed, because he concluded that regulation of such small transactions was “necessary and proper” to a “larger regulation of economic activity” nationwide. Under Gonzales, therefore, the regulation of purely private intrastate sales of guns would fall within the interstate-commerce clause.
In my view, this approach violates the original understanding of the commerce clause. The rest of Article I’s grant of powers to Congress already include powers that relate to commerce, such as bankruptcy, creating a currency, running a post office, and establishing rules of intellectual property. Why list any of these powers at all if the modern reading of the commerce clause allows Congress to regulate anything that affects, but itself is not, interstate commerce. As Justice Clarence Thomas observed in United States v. Lopez (1995), “much if not all of Article I, Section 8 (including portions of the Commerce Clause itself), would be surplusage if Congress had been given authority over matters that substantially affect interstate commerce.” As Thomas put it, this “simply cannot be correct.” While Thomas is simply correct, the Supreme Court’s interpretation of the clause today allows Congress to require expanded background checks for every firearm purchase in the nation.
Dispensing with these constitutional concerns will allow members of Congress and the executive branch to focus on what is truly important: whether expanded background checks, combined with other measures such as “red flag” laws and more proactive mental-illness policies, will prove effective. While the ability to combat mass shootings will rest primarily in the hands of local and state law enforcement, the Constitution allows our national leaders the ability to contribute to a response, at least with background checks.
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