New Gun Laws in California Would be in Supreme Court’s Crosshairs

Photo courtesy of krazydad/jbum, Flickr.

Photo courtesy of krazydad/jbum, Flickr.

Gun owners in California recently woke up to the news that the California Senate had passed a stack of bills putting new restrictions on the use of guns.

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If they all become law, you’ll need a license to sell ammunition and a background check to buy it, magazines that hold more than 10 rounds will be illegal, more guns will be classified as “assault weapons,” homemade guns will need state serial numbers, and it will be a crime to loan a gun to anyone who isn’t a family member or a licensed hunter.

Are those proposed laws constitutional?

The Supreme Court said in 2008, in District of Columbia v. Heller, that Americans have the right as individuals to keep and bear arms. The court struck down Washington, D.C.’s, “absolute prohibition of handguns held and used for self-defense in the home.”

But the Heller decision left many questions unanswered, starting with whether the Second Amendment was binding on the 50 states as well as on the District of Columbia.

When the first 10 amendments to the Constitution were ratified in 1791, nobody thought they applied to the states. Chief Justice John Marshall wrote in 1833 that if Congress had intended the Bill of Rights to bind the states, “they would have declared this purpose in plain and intelligible language.”

That understanding still prevailed at the start of the 20th century, as bank robber “Gunplay” Maxwell discovered. In 1900 he complained that Utah had denied his Sixth Amendment right to trial by jury, but the U.S. Supreme Court said the first 10 amendments “were not intended to and did not have any effect upon the powers of the respective states,” adding, “This has been many times decided.”

The Supreme Court never said the whole Bill of Rights applies to the states. Instead, there was a gradual process of selectively declaring particular rights to be “fundamental” to liberty. That makes them apply to the states through the Fourteenth Amendment, which says the states can’t deny liberty to any person without due process of law.

“Gunplay” Maxwell was ahead of his time. The Supreme Court decided that trial by jury was “fundamental” to liberty in 1968.

In 2010, two years after the Heller decision, the right to keep and bear arms was declared “fundamental” in McDonald v. Chicago.

This gradual “incorporation” of the Bill of Rights into the Fourteenth Amendment has been going on for about 90 years and has silently transferred power from state legislatures to federal courts. For example, in 2011 the Supreme Court struck down a California law that banned the sale of violent video games to minors. The justices said California had not shown the court a “compelling” reason to have a law that infringes the First Amendment rights of video game creators.

Soon, California may have to show the court a “compelling” reason for laws that infringe the Second Amendment rights of gun owners.

For 90 years, the justices have invented balancing tests and “scrutiny” levels to guide decisions in these cases, but it remains what Justice Felix Frankfurter called it in 1947: “merely subjective.”

Does California have a “compelling” reason to require background checks for ammunition purchases? One justice may think so, but another may find the reason “only rational.” Five votes for “compelling” would uphold such a law, while five “only rationals” would be enough to strike it down.

Over the next decade, Second Amendment rights will be profoundly affected by the personal values of the justices appointed by the president who’s elected this November.

The NRA made an early endorsement and started the fight before June.


  1. Typical California Liberal Loons pushing their unwarranted agendas. Thought most of these already pertained to CA. Not sure what they are trying to achieve aside from annoying the people. This Kevin De Leon is a nut that needs to be voted out.

    • askeptic says

      A lot of our “usual suspects” (like De Leon) are so dense they think that “McDonald v. Chicago” is about burgers.

      • Skeptical says

        Well, DeLeon is the original “30 rounds per second clip” expert about detachable 30 round magazines. LOL
        Besides, he really only knows what the San Francisco based -Law Center for the Prevention of Firearms Violence- tells him in the bills they feed him. HE IS A TALKING WOODEN HEAD!

  2. Skeptical says

    “When the first 10 amendments to the Constitution were ratified in 1791, nobody thought they applied to the states. Chief Justice John Marshall wrote in 1833 that if Congress had intended the Bill of Rights to bind the states, “they would have declared this purpose in plain and intelligible language.””
    If so, Chief Justice Marshalls statement provokes to the point of absurdity. If the Federal Constitutions amendments do not universally apply throughout the Union, then this nessesarily means the: right to trial of peers, freedom of press, and indiviual speech, freedom from cruel and unusual punishment, etc. DOES NOT ALSO APPLY UNIVERSALLY???? Torture to death is determined acceptable or not by state legislatures and judicial review????? The incidence of a goverment enitity acting as though this concept is true does not self-validate!
    Try selling this idea of Marshalls to the citizenry.


  3. JLSeagull says

    If the Amendments to the Constitution were not intended to apply to the states why do the 3/4 of the states have to approve them before they become effective?

  4. Randy Townsend says

    The BoR didn’t apply to the states because, in 1791, the federal government was infinitesimally small – the state governments held the vast majority of the legislative power. After the Civil War, the implementation of our government was literally upended. The BoR gradually WAS applied to the states, but gun ownership remained so common, there was no need to assure people of the right to own a gun. Look at today: The CA legislature is slowly, but very effectively, ratcheting down the ability of non-badged individuals to own a firearm. The ammunition restrictions are particularly devious (and smart – from the standpoint of taking away the exercise of a fundamental right) since the machinery for a background check is already in place. What will follow shortly are restrictions on quantity purchases of ammo. After that? The elimination of the private ownership of semi-automatic firearms. Trusting this SC (or any SC, regardless of the composition) to guard our gun rights is a fools bet – they have already uphel\d the ACA as a tax, no – a program, no a… doesn’t matter – IT’S LEGAL. They will not be any more consistent in deciding we have teh right to keep and bear arms. Whatever they decide, it will be LEGAL…. What will you do then?

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