Waiting periods. Magazine restrictions. Age limits. California gun owners are optimistic all of these state gun control laws — and more — could soon be ruled unconstitutional.
“It’s going to be earth shattering,” Sam Parades, the executive director of the Gun Owners of California, said of Amy Coney Barrett’s confirmation to the United States Supreme Court. “A whole sea change. Everything will be challenged. Waiting periods, handgun restrictions, magazine restrictions, the so-called assault weapons ban. Open carry will become standard.”
Parades believes Barrett’s addition to the Supreme Court creates a firmly pro-Second-Amendment bloc on the Supreme Court, which will now be more likely to take up gun control cases.
This year’s New York State Rifle & Pistol Association Inc. v. City of New York almost became the first major Second Amendment case in over 10 years, but the court decided by a 6-3 margin not to rule on the merits following a procedural haggle. Chief Justice John Roberts and Associate Justice Brett Kavanaugh sided with the court’s four left-leaning justices in punting the case back to the lower courts, but Kavanaugh has signaled a willingness to hear a new Second Amendment case and extend the scope of the right of an individual to keep and bear arms.
All of which makes Barrett replacing Ginsburg a potential game-changer.
“There are challenges on California’s gun laws bubbling through the federal courts, which makes it possible but not likely we see a case this term,” said UCLA Law Professor Adam Winkler, who specializes in constitutional law and the Second Amendment. “But it won’t be long before the court finally takes another gun case.”
And when they do, California’s gun restrictions are endangered. National gun control groups fervently opposed Barrett’s confirmation, with Everytown for Gun Safety president John Feinblatt calling Barrett a “gun rights extremist who has no place on the Supreme Court.”
“If you want to know which laws could be struck down, just open the penal code and look at every law about guns,” said Winkler. “We’re at that level.”
California has gun laws ranging from online ammunition purchase restrictions to red flag laws, and Winkler believes the court could start the process of striking down gun control laws one-by-one.
When asked which laws he thinks could fall first, Winkler identified the state’s high-capacity magazine ban and individual cities’ restrictive conceal and carry laws as the most endangered. Winkler said that in other states, roughly 3-5% of citizens obtain conceal and carry permits. He then extrapolated these figures to Los Angeles County, which has a population of 10 million.
“If the court rules that cities like Los Angeles and San Francisco have to permit any law-abiding person to carry guns on the streets, that would be a huge change in California,” he said. “Fewer than 500 people have conceal and carry permits in Los Angeles County right now, and if we use the rates of conceal and carry permits in other states and apply it to California, we could be looking at 300,000 to 500,000 people in Los Angeles County alone carrying guns.”
If Parades and other gun owners have their way, the court won’t stop there. Parades hopes that the court will choose to apply a level of scrutiny to Second Amendment cases that goes beyond strict scrutiny — which is typically considered the toughest standard of judicial review. For a constitutionally questionable statute to survive a strict scrutiny test, the body enacting the statue must prove it is trying to further a compelling interest, and the policy must be both narrowly tailored and the least restrictive way of pursuing this interest.
Parades hopes that the court will adopt a different standard of judicial review for Second Amendment cases: An original public meaning standard. In 2008’s Heller v. District of Columbia, a case that saw the court strike down a Washington D.C. ordinance regulating handguns in the home, the late Justice Antonin Scalia — the very justice Barrett clerked for — wrote in his majority opinion that the original public meaning of the Second Amendment protects an individual right to self-defense that cannot be abridged by a state actor.
Here’s an example that highlights the critical difference between the strict scrutiny standard and the original public meaning standard Parades is advocating for: If the State of California had to defend its high-capacity magazine ban in front of a court applying strict scrutiny, attorneys would likely argue that preventing mass shootings is a compelling interest, and banning high-capacity magazines is a narrowly-tailored policy that’s the least restrictive way of trying to prevent mass shootings.
However, under the original public meaning standard, the state would lose its ability to argue lawmakers are furthering a compelling interest. The only way the magazine ban could survive the original public meaning standard is if attorneys could prove 18th Century legislatures enacted similar restrictions that were not thought to violate the Second Amendment at the time.
“It will set the table to challenge all of these laws, and none can overcome the standard,” Parades said.
Winkler believes it’s possible the court goes this far.
“That’s a possibility,” he said. “Both Justice Kavanaugh and Justice Barrett have staked out a position in their opinions that would focus solely on history and tradition, so gun control laws are only constitutionally permissible when they have strong historical pedigrees. It doesn’t matter if the state has a compelling interest.”
If the court adopts this original public meaning standard, almost everything is on the table.
“Restrictions on military-style assault weapons will come before long, and I imagine the court will strike those down,” Winkler predicted. “Other laws that could go are the 10-day waiting period and red flag laws. If you’re looking only at history and tradition, there’s no history of these laws in the 18th Century. Even though many of these laws are bipartisan and thought to be useful tool, there’s no history and tradition behind them. If Barrett and Kavanaugh are serious, these laws likely fall, but I think background checks would survive.”
Both Winkler and Parades agree that if there’s one silver-lining for gun control advocates, it’s that background checks and limitations on who can own guns, such as laws that prohibit individuals with criminal records or mental health conditions from owning firearms, appear to be the least endangered regulations.
In Heller, Scalia noted that 18th Century legislatures often placed restrictions on who could own firearms, which strongly suggests similar contemporary laws would survive the original public meaning test. However, restrictions on firearms themselves that significantly impair operability may soon become a thing of the past.