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Legislative Overreach on Gun Rights

JURIST contributing editor Allen Rostron of the University of Missouri-Kansas City School of Law discusses new gun laws enacted in Missouri and proposed in Pennsylvania and how they reflect an insatiable appetite for enacting pro-gun legislation even when gun rights are well secured under existing laws...

While gun control remains a bitterly divisive issue, there can be little doubt as to which side of the debate has had the upper hand in recent years. The Supreme Court has ruled in favor of gun rights advocates' arguments about the Second Amendment in the Heller [PDF] and McDonald [PDF] cases. Attempts to enact even modest new restrictions on guns have repeatedly failed in Congress, even after a seemingly endless series of horrific shooting incidents at places like Virginia Tech, Tucson, Aurora, Newtown, San Bernardino, and Orlando. From a political standpoint, the conventional wisdom has been that supporting gun control is more likely to hurt than help a candidate.

With Congress deadlocked on gun issues, attention has turned to the state level [PDF]. While legislatures in a few states such as California, Connecticut, Maryland, and New York have enacted new gun control laws, legislatures in many other states have gone the other way and passed laws making it easier to acquire and carry guns. In some of these states, lawmakers have begun to go to extreme lengths in their efforts to prove their devotion to gun rights and to curry favor with gun enthusiasts and organizations like the National Rifle Association (NRA).

A striking example is Missouri, where lawmakers recently overrode the governor's veto and passed a measure [PDF] further weakening the state's lenient gun laws. Missouri already had laws that permitted people to carry concealed guns. To obtain a permit, a person had to successfully complete an eight-hour training course, a measure ensuring that those licensed to carry concealed guns had some minimal degree of knowledge about and experience with safe handling and use of firearms, as well as the laws relating to firearms and justifiable use of force. As of January 1, 2017, permits will no longer be required for carrying concealed guns in Missouri.

In passing this measure, Missouri legislators wiped away the limited amount of discretion that county sheriffs in the state previously had to deny a concealed carry permit when they had particular reasons to think an individual applying for a permit could not be trusted to safely carry a firearm. As one sheriff explained, "I could refuse a permit for somebody who has had frequent contact with the law, or who is a suicide threat. Now that person will be able to carry a concealed weapon, and that concerns me."

The Missouri enactment was a solution in search of a problem. The right to carry a handgun was already well protected in Missouri, and a survey [PDF] found that less than twenty percent of the state's residents favored elimination of the permit requirement. Even in households where people own guns and carry them concealed, the vast majority of survey respondents were satisfied with the state's existing laws and opposed to allowing concealed carry without a permit. The Missouri legislature nevertheless defied that strong consensus in order to deliver a victory to the NRA, which declared it "a great day for freedom in Missouri."

Meanwhile, legislators in Pennsylvania are also looking to deliver a generous gift to the NRA. They want to give organizations like the NRA special standing to sue and recover damages and attorneys' fees from local governments in Pennsylvania.

Like many other states, Pennsylvania has a law that prohibits local regulation of firearms. The NRA began pushing for the enactment of these preemption laws in the 1980s, realizing gun advocates could use their leverage at the state legislative level to block action by local mayors and city council members who might be inclined to support tighter restrictions on guns. These preemption laws stop decisions and policies about guns from being made at the local level, forfeiting any opportunity for officials closest to the interests of a particular city or county to craft approaches best suited for local needs and concerns.

With the preemption law already in place in Pennsylvania, one would think that even the most enthusiastic supporters of gun rights in the Pennsylvania legislature would be satisfied and not feel the need to go further. Pennsylvania lawmakers nevertheless are pushing a bill to ensure that the NRA can bring lawsuits against Pennsylvania cities and counties based on the preemption statute. The bill provides that a "person adversely affected" by a local law concerning guns can sue to have the local law invalidated, with the relief to include damages and an award of legal costs as well as injunctive or declaratory relief. The bill goes on to say that a "person adversely affected" by a local gun regulation would include not just an individual gun owner in Pennsylvania, but also any "membership organization" to which a Pennsylvania gun owner might belong.

The NRA has been frustrated in past attempts to bring suits under the Pennsylvania preemption law, and the bill to bestow standing on membership organizations is clearly drafted with the NRA in mind. But opponents of the bill have noted that all sorts of other organizations could take advantage of the special standing created by the bill. As the bill's critics pointed out in committee debate, the bill would give standing for lawsuits against Pennsylvania cities by domestic hate groups like the Ku Klux Klan or even foreign entities like the Islamic State of Iraq and Syria (ISIS), provided those organizations could show they had at least one member who lived in Pennsylvania and legally possessed a firearm.

A similar measure, giving standing to membership organizations in firearm cases, was enacted in Pennsylvania in 2014. It passed after being inserted into an unrelated and uncontroversial bill creating criminal penalties for theft of metals like copper pipes or wiring. The Supreme Court of Pennsylvania unanimously held that enacting the provision about standing for firearm preemption lawsuits in that manner violated the state's constitutional requirement that bills must have a single subject.

That setback has not deterred the Pennsylvania legislators who want to give the NRA standing to sue the state's local governments. Although Pennsylvania's governor opposes the legislation, the bill's proponents are optimistic about passing the bill with a veto-proof majority.

Many plausible arguments can be made on both sides of the gun debate. If the policy issues surrounding firearms had easy, obvious answers in one direction or the other, they would not be so controversial.

I worry, however, that legislators may be tempted to keep pushing continuously for enactment of additional pro-gun legislation merely to establish and re-affirm their commitment to the issue. Even when current laws put no undue burden of any sort on any gun owner's rights, legislators will still have political incentives to impress the NRA and its most ardent members with their devotion to the cause by coming up with some new measure to pursue in the name of advancing firearm rights. Legislators will essentially entrench themselves in the business of enacting more laws to weaken gun controls and strengthen gun rights, regardless of whether anyone really thinks the changes are needed. As the recent actions of lawmakers in Missouri and Pennsylvania have shown, the results will be unfortunate, with legislatures overreaching to advance an agenda rather than being content with current laws under which gun rights are already quite well protected.

Allen Rostron is Associate Dean for Students and the William R. Jacques Constitutional Law Scholar and Professor of Law at the University of Missouri—Kansas City School of Law and a former senior staff attorney for the Brady Center to Prevent Gun Violence.

Suggested citation: Allen Rostron Legislative Overreach on Gun Rights, JURIST - Academic Commentary, October 15, 2016, http://jurist.org/forum/2016/11/allen-rostron-legislative-overreach-on-gun-rights.php.



This article was prepared for publication by Elizabeth Dennis, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.
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Academic Commentary is JURIST's platform for legal academics, offering perspectives by law professors on national and international legal developments. JURIST Forum welcomes submissions (about 1000 words in length - no footnotes, please), inquiries and comments at academiccommentary@jurist.org

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