Does Proposition 63 Infringe on the Second Amendment?

California voters recently passed several new gun laws under ballot measure Proposition 63. This has stirred up fervent arguments on all sides of the issue—including the debate that took place at the Colleges of Law this past February. Here, JD student Bryan Murotake examines the 2nd Amendment and how Prop 63 tests its limitations.

Gun Control in California

In July 2016, Governor Jerry Brown signed six gun control laws into effect. These laws vary, from requiring identification and a background check to purchase ammunition and creating a new state database of ammunition owners, to banning possession of firearm magazines holding more than ten rounds of ammunition.

Proposition 63—also known as the “Safety for All” bill—appeared on the November 8, 2016, ballot in California as an initiated state statute. California voters approved the initiative by roughly 63 percent.

This brings to light issues involving the legality of large-capacity magazines (LCMs) and possible violations to the Second Amendment of the United States Constitution. Specifically, the issue is: Does a ban on LCMs infringe on the Second Amendment?

What is Prop 63?

The general overview of Proposition 63 states:

“A background check and California Department of Justice authorization to purchase ammunition, prohibits possession of large-capacity ammunition magazines, establishes procedures for enforcing laws prohibiting firearm possession by specific persons, and requires California Department of Justice’s participation in the federal National Instant Criminal Background Check System.”

In short, Proposition 63 is intended to improve public safety by keeping guns and ammunition out of the wrong hands. It does this by creating a new court process for the removal of firearms from individuals who are convicted of certain crimes and implementing new requirements related to the selling or purchasing of ammunition.

Beginning July 1, 2017, the law will come into effect, and Californians owning LCMs will be required to surrender the magazines to local law enforcement agencies, or gunsmiths. Those who fail to comply with these requirements could face felony criminal charges.

Does This Violate the 2nd Amendment?

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.—U.S. 2nd Amendment

While this sentence may seem simple, there are numerous cases that point to the complexity of the amendment.

One of the most controversial cases was brought to the Supreme Court in District of Columbia v. Heller (2008). Here, the court deemed that statutes that banned handgun possession in individual’s homes were held to violate the Second Amendment. It is worth noting, that the Supreme Court has yet to address whether laws banning LCMs are constitutional.

Proposition 63 was not the first step toward banning LCMs. In 1994, Congress passed the Public Safety and Recreational Firearms Use Protection Act, known as the Federal Assault Weapons Ban (AWB). The AWB made certain rifles—which were defined by the act as “assault weapons”—and magazines that held more than ten rounds of ammunition illegal for a period of ten years. This ban was a subsection of the Violent Crime Control and Law Enforcement Act of 1994.

However, because there was a sunset provision on the ban—which terminated the law—there was a loophole, which permitted possession of LCMs in California. While several challenges against the Federal Assault Weapons Ban have been dismissed, there have been seemingly contrasting rulings on the issue of large-capacity magazines.

Friedman v. City of Highland Park, Illinois

The City of Highland Park issued an ordinance that prohibited the possession of assault weapons and LCMs. Firearm owners and organizations brought an action for declaratory and injunctive relief against the city—challenging the law as a violation of the Second Amendment.

In deciding this issue, the court asked two questions:

  • Was the city regulation banning weapons that were common at the time of the 2nd Amendment’s ratification?
  • Do the guns have “some reasonable relationship to the preservation or efficiency of a well-regulated militia?”

Considering that most guns could not fire more than one shot in 1791, the court found it hard to enforce the injunction against the LCM law based off of the first question. Regarding the second, the court cited the Supreme Court ruling in U.S. v. Miller. The case ruled that the possession of sawed-off shotguns did not have any relationship to the preservation of the militia. The city’s prohibition of large-capacity magazines remained.

Kolbe v. Hogan

Following the Sandy Hook Elementary School shooting, Connecticut, New York, and Maryland placed bans on LCMs.

Plaintiff Stephen Kolbe and various gun associations challenged the ban as an infringement on their Second Amendment right. The 4th Circuit ruled that assault weapons were typically owned by law-abiding citizens, and a ban on the possession of AR-15 style rifles and LCMs by law-abiding citizens substantially burdened the core Second Amendment right to defend oneself and one’s family in the home.

This court also asserted that detachable magazines are protected by the Second Amendment, because if it were not for the bullets in the magazine, the weapon would be useless.

As a result of this ruling, should another state in the 4th Circuit seek to implement a ban on assault weapons, they would fall under the scope of the Second Amendment under stare decisis. Therefore, a state in the 4th Circuit would have a heavy burden in attempting a statewide ban on assault weapons.

Recently, the Maryland Attorney General sought an en banc rehearing on the matter, with oral arguments delivered on June 11, 2016. There has yet to be a decision on this matter.

Where Does that Leave Prop 63?

Through these cases, it becomes clear that there are contrasting interpretations of the Second Amendment and how to approach semi-automatic rifles and LCMs. Moreover, there seem to be differing opinions between the Circuit Courts. With the Circuits disagreeing on their opinions, the only way to streamline gun laws in the United States would be if the Supreme Court stepped in and issued an opinion. Though, this may prove unwise, as it will leave a large portion of the population alienated, regardless of the position the court sides with.

President Donald Trump’s nominee for the Supreme Court, Judge Neil Gorsuch, recently was sworn in. Judge Gorsuch is known for his use of originalism and textualism in his interpretation of the Constitution. He will likely apply the plain meaning of the text of the Second Amendment at face value. Though, it should be noted that there are no known cases that show Judge Gorsuch’s interpretation of the Second Amendment. Regardless, it is purely speculation as to whether the Supreme Court will hear a case over LCMs within the next few years.

Does banning large capacity magazines infringe on the Second Amendment?

Ultimately, there are two schools of thought.

One argument is that it does not pose a significant enough burden on the Second Amendment to be unconstitutional. While the courts concede that there is a minor infringement on the Second Amendment by banning LCMs, the infringement is outweighed by the need for public safety.

On the other side, many courts declared that gun control laws are generally not followed by those who participate in gun crimes. Therefore, law-abiding citizens are placed at a disadvantage when it comes to self-defense. Additionally, these laws violate the presumption that citizens of the United States are innocent of crimes until proven guilty by assuming that these guns and magazines will be used to commit crimes.

Also, under a plain reading of the text of the Second Amendment, as well as the Supremacy Clause in the Constitution, the words “shall not infringe” means not to act in a way that limits these rights. The argument also challenges the reasoning that public safety is a reason to limit gun ownership by pointing to cities such as Detroit, Chicago, and Washington D.C.—where gun control laws are most restrictive, yet gun-related violent crimes are the highest. This, in their opinion, is strong evidence that allowing less-restricted gun ownership decreases crime.

However, I firmly believe in public safety and the measures that need to be taken to protect citizens. I do not believe LCMs should be banned, but I believe there should be further restrictions on them. As someone with an undergraduate degree in history, I recognize and respect the rights that our Founding Fathers gave to all citizens of the United States. I firmly believe that public safety of my fellow citizens should be protected at all cost.