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The Constitution and Supreme Court set a high bar for gun control – Orange County

On February 14, President Biden marked the third anniversary of the deadly shooting incident at Marjory Stoneman Douglas High School in Parkland, Florida, with an announcement that he is calling on Congress to enact “commonsense gun law reforms.”

As always, the details matter. The president defined “commonsense” as a requirement for background checks on all gun sales, a ban on “assault weapons and high-capacity magazines,” and an end to “immunity for gun manufacturers who knowingly put weapons of war on our streets.”

The U.S. Supreme Court held in 2008, in the District of Columbia v. Heller decision, that the Second Amendment right to “keep and bear arms” is an individual right that is not contingent on service in “a well-regulated militia.” That means the U.S. Constitution limits the federal government’s power to pass laws restricting that right.

Exactly where are the limits? That’s always a matter of interpretation. The Heller opinion, written by the late Associate Justice Antonin Scalia, held that the District’s law prohibiting the possession of handguns was over the line, as was its law requiring residents to keep their lawfully owned, registered long guns “unloaded and dissembled or bound by a trigger lock or similar device” unless the guns were located in a place of business or in use for lawful recreational activities.

Scalia wrote that the handgun ban “amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society” for the “lawful purpose” of “the inherent right of self-defense.” Under any standard that the court has used, he wrote, “banning from the home ‘the most preferred firearm in the nation to keep and use for protection of one’s home and family,’ would fail constitutional muster.”

So if the president’s definition of “assault weapon” and “weapons of war” includes commonly owned firearms and magazines, it’s likely that new laws banning these or seeking to create new legal liability for their manufacturers will be found unconstitutional by the U.S. Supreme Court, should these laws be challenged.

And there’s no doubt that such laws would be challenged. After Biden’s statement was released, the Firearms Policy Coalition responded, denouncing what it called “unconstitutional and immoral policies including bans on common semi-automatic firearms and ammunition magazines.” A number of lawsuits over various state laws related to firearms ownership are already working their way toward the high court.

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