In 2014 gun rights proponents achieved a string of gun rights victories in the courts, legislatures, and public opinion. The courts struck down a number of federal and state gun restrictions on Second Amendment grounds, the legislatures of Kansas and Missouri legalized the open carry of handguns, and voters in Castle Rock, Colorado voted to repeal restrictions on open carry.
Meanwhile, public pressure forced New Jersey officials into easing off zero-tolerance policies against gun owners traveling through the Garden State, and the New York Times concluded that the term “assault weapon” was a “myth,”
and the PEW research group found that “support for gun rights in the United States is at highest point in two decades.”
The only cautionary flag thrown against 2014’s rising gun rights tide was Washington state voter approval of Initiative 594 backed by billionaires Bill Gates and Michael Bloomberg requiring background checks on the private transfers of firearms – i.e., non-dealer related gun sales, trades, and gifts – in that state. Nonetheless, gun rights supporters take solace from the fact that I- 594 is facing a growing political and legal backlash from voters and law enforcement officials over the vagueness of the measure. The Second Amendment Foundation filed “a federal lawsuit in U.S. District Court in Tacoma, challenging provisions of Initiative 594, the 18-page gun control measure passed by voters Nov. 4, on constitutional grounds,” reports zoomdune.com’s Dave Workman.
But the nearly all-positive gun rights news just kept coming right up to the end of 2014.
In late December the United States Court of Appeals for the District of Columbia held 3-0 that the Environmental Protection Agency (EPA) does not have the power to ban lead bullets commonly used in hunting and self-defense. And nearly simultaneously, a “three-judge panel of the Sixth U.S. Circuit Court of Appeals unanimously ruled in Tyler v. Hillsdale County Sheriff’s Department that the federal life-time ban on gun ownership for anyone who has been ‘adjudicated as a mental defective or who has been committed to a mental institution’ violated the Second Amendment.” This ruling essentially forces the federal government – at least within the Sixth Circuit – to allow persons previously committed to a mental institutional to seek restoration of their gun rights.
Legal eagles are circling overhead pondering the implications of the Sixth Circuit’s opinion in two respects – “scrutiny,” and the Supreme Court’s arguably hand-waiving dicta about the general scope of Second Amendment rights in its most recent Second Amendment cases, District of Columbia v. Heller (2008) (holding that the Second Amendment provides a right to keep and carry weapons in case of confrontation) and McDonald v. Chicago (2010) (holding that the Fourteenth Amendment incorporates the Second Amendment against state power).
SCOTUS Blog’s Lyle Denniston notes that the Sixth Circuit’s opinion requires that “laws imposing controls on the personal right to have a gun must satisfy the most rigorous constitutional test known as ‘strict scrutiny’ to be constitutionally valid.” This is the test that court often apply to many or most restrictions on other constitutional rights, but most courts – including the Supreme Court – have side-stepped the scrutiny issue in gun cases so far.
OpenCarry.org’s co-founder John Pierce, a Virginia attorney who practices in the areas of “gun trusts,” restoration of gun rights, and other matters, finds the Sixth Circuit’s criticism of both the Supreme Court’s and the NRA’s survey of the historical foundation of the Second Amendment to be the most striking part of the Appeals Court ruling.
What you have here are three respected Appeals Court Judges pointing out that a lot of the dicta in the Heller and McDonald opinions about preemptively allowable firearm restrictions are not necessarily historically accurate, nor binding on the lower courts who will hear these cases down the road,” says Pierce.
Pierce points out that Judge Bogg’s opinion calls out even the NRA’s General Counsel Robert Dowlut for inaccurately concluding in Dowlut’s “chain cited” Law Review article (The Right to Arms: Does the Constitution or the Predilection of Judges Reign?, 36 OKLA L. REV. 65, 96 (1983)) that “Colonial and English societies of the eighteenth century . . . have excluded infants, idiots, lunatics, and felons [from possessing firearms] . . . We are not aware of any other historical source that suggests that the right to possess a gun was denied to persons who had ever been committed to a mental institution, regardless of time, circumstance, or present condition.” [see footnotes 9-11 in the opinion].
Mr. Pierce believes that as gun rights cases progress through the courts across America in 2015, state and federal courts are likely to continue to dig into the historical roots of the Second Amendment and find that they are deeper stronger than much of the soft dicta in Heller and McDonald suggest, and that restrictions on the right to bear arms are deserving of “strict scrutiny.”