December 30, 2018
The
Supreme Court’s decision in Heller v. District of
Columbia did much to encourage pro-gun forces, less by its
holding than by its loose language concerning gun rights and its rewriting of
the Second Amendment to explain away the reference to militias. Sometimes lost in general discussion of the
case on both sides of the issue are qualifications and limitations in the opinion
which may have left some doors ajar. Gun-control forces should push those doors open. In that spirit, last month Washington voters
approved — 59.35% voting in favor — Initiative 1639, entitled The Public Safety
and Semiautomatic Assault Rifle Act.[63]1 It amends the existing law on firearms, RCW
9.41.[64]2 How do the initiative’s provisions fare when
compared to the language in Heller? In addition, does existing law raise
questions? [65]3
Dealers.
The
Supreme Court’s opinion stated that “nothing in our opinion should be taken to
cast doubt on . . . laws imposing conditions and qualifications on the
commercial sale of arms” Existing law, as modified by I-1639, imposes such
limits, described below.
Initially,
it complies with Heller’s reference to commercial
sale of arms by limiting its restrictions on sale to “dealers.” That term is defined in existing law as
follows: “ ‘Dealer’ means a person engaged in the business of selling firearms
at wholesale or retail who has, or is required to have, a federal firearms
license under 18 U.S.C. Sec. 923(a).”
One who is not required to be so licensed is not a dealer “if that
person makes only occasional sales, exchanges, or purchases of firearms for the
enhancement of a personal collection or for a hobby, or sells all or part of
his or her personal collection of firearms.”
Dealers are subject to rules which include background checks; more on
that later.
There
should be no Heller problem in imposing limitations
on sales by dealers, but existing RCW 9.41.113 extends the requirement of
background checks to all “firearm sales or transfers, in whole or part in this
state including without limitation a sale or transfer where either the
purchaser or seller or transferee or transferor is in Washington . . . unless
specifically exempted by state or federal law.” This includes “sales and transfers through a licensed dealer, at
gun shows, online, and between unlicensed persons.” If neither party is a licensed dealer, “the parties to the
transaction shall complete the sale or transfer through a licensed dealer as
follows:
(a) The seller or transferor shall deliver the
firearm to a licensed dealer to process the sale or transfer as if it is
selling or transferring the firearm from its inventory to the purchaser . . .”
(b) . . .the licensed dealer shall comply with all
requirements of federal and state law that would apply if the licensed dealer
were selling or transferring the firearm from its inventory to the purchaser or
transferee, including but not limited to conducting a background check on the
prospective purchaser or transferee . .
. and complying with the specific requirements and restrictions on
semiautomatic assault rifles in this act.
The last phrase is added by I-1639.
In
effect, a private transaction is converted into a commercial one by involving a
dealer. There is a long list of exceptions; even so, this extension to private
transfers presses the limits of Heller’s concessions.
Background checks; waiting periods.
RCW
9.41.092, as modified by I-1639, provides:
(1) Except as otherwise provided in this chapter and
except for semiautomatic assault rifles under subsection (2) of this
section, a licensed dealer may not deliver any firearm to a
purchaser or transferee until the earlier of:
(a) The results of all required background checks
are known and the purchaser or transferee (I) is not prohibited from owning or
possessing a firearm under federal or state law and (ii) does not have a
voluntary waiver of firearm rights currently in effect; or
(b) Ten business days have elapsed from the date
the licensed dealer requested the background check. However, for sales and
transfers of pistols if the purchaser or transferee does not have a valid
permanent Washington driver's license or state identification card or has not
been a resident of the state for the previous consecutive ninety days, then the
time period in this subsection shall be extended from ten business days to
sixty days.
(2) Except as otherwise provided in
this chapter, a licensed dealer may not deliver a semiautomatic assault rifle
to a purchaser or transferee until ten business days have elapsed from the date
of the purchase application or, in the case of a transfer, ten business days have
elapsed from the date a background check is initiated.
The additions by I-1639 are underlined. It isn’t obvious why, in the case of
purchase, the SAR may be delivered ten days after the purchase application, but
in the case of a transfer — and for other firearms — time runs from the background check application.
Semiautomatic assault rifles.
All
references to SARs below were added by the Initiative. It defines such a weapon as follows: "
‘Semiautomatic assault rifle’ means any rifle which utilizes a portion of the
energy of a firing cartridge to extract the fired cartridge case and chamber
the next round, and which requires a separate pull of the trigger to fire each
cartridge.”
Parsing Heller
on this category of weapons is difficult, because the majority opinion is
internally inconsistent on whether the Second Amendment covers only weapons in
existence in the Seventeenth Century.
I-1639 depends for its survival on the more restrictive interpretation,
which is the one the opinion seemed to settle on: “We also recognize another
important limitation on the right to keep and carry arms. [United States v.]
Miller said, as we have explained, that the sorts of weapons protected were
those ‘in common use at the time’. We
think that limitation is fairly supported by the historical tradition of
prohibiting the carrying of ‘dangerous and unusual weapons.’ " Assault rifles clearly were not in use then
and are dangerous, if not, unfortunately, uncommon.
That a
modern militia would use modern weapons does not change the interpretation: “It
may be objected that if weapons that are most useful in military service — M-16
rifles and the like – may be banned, then the Second Amendment right is
completely detached from the prefatory clause [the reference to militias]. But
as we have said, the conception of the militia at the time of the Second
Amendment's ratification was the body of all citizens capable of military
service, who would bring the sorts of lawful weapons that they possessed at
home to militia duty.”
It could
be argued that the Court’s comment is limited to the M-16, and that an SAR is a
less dangerous weapon. That would seem
to be a strained interpretation, but, as with much of Heller,
who knows what that passage means or may mean in the future? Several
decisions since McDonald have upheld bans on assault
rifles. In Friedman v.
Highland Park, 784 F.3d 406 (2015), the plaintiff challenged a
city ordinance in Illinois which banned manufacturing, selling or possessing
semiautomatic firearms. The lower
courts upheld the ordinance and the Supreme Court declined review. New York State Rifle &
Pistol Ass'n, Inc. v. Cuomo, 804 F.3d 242 (2015), upheld New York
and Connecticut laws prohibiting possession of semiautomatic assault
weapons. In Kolbe v.
Hogan, 849 F. 3d 114 (2017), the court held that a Maryland ban
on assault long guns, i.e., most semi-automatic rifles, is valid, as they are
like M-16s. The Supreme Court declined
review. In a second round of Heller
v. District of Columbia , the Court of Appeals upheld a
District law banning semi-automatic rifles.
(Judge, now Justice, Kavanaugh dissented in part because those guns
differ from M-16s. He also emphasized
their widespread use).
If SARs
may be banned, surely they may be regulated; the Initiative does so. I-1639 modifies a provision applicable to
pistols; the existing text, RCW 9.41.090, is as follows:
In addition to the other requirements of this
chapter [RCW 9.41], no dealer may deliver a pistol to the purchaser thereof
until:
(a) The purchaser produces a valid concealed pistol
license and the dealer has recorded the purchaser's name, license number, and
issuing agency . . . .
(b) The dealer is notified in writing by . . . the
chief of police or the sheriff of the jurisdiction in which the purchaser
resides that the purchaser is eligible to possess a pistol . . . . or
(c) The requirements or time periods in RCW
9.41.092 have been satisfied.
As noted above, RCW 9.41.092 sets the waiting
period at ten days in most cases. That
may interfere with the background-check mechanism. However, there seems to be concern that any waiting period may
offend Heller’s version of the Second Amendment.
The
Initiative adds this:
In addition to the other requirements of this
chapter, no dealer may deliver a semiautomatic assault rifle to the purchaser
thereof until:
(a) The purchaser provides proof that he or she has
completed a recognized firearm safety training program within the last five
years that, at a minimum, includes instruction on: (i) Basic firearms safety
rules; (ii) Firearms and children, including secure gun storage and talking to
children about gun safety; (iii) Firearms and suicide prevention; (iv) Secure
gun storage to prevent unauthorized access and use; (v) Safe handling of
firearms; and (vi) State and federal firearms laws, including prohibited
firearms transfers.
As with pistols, there is a requirement of a background
check and a time limit, corresponding to subsections (b) and (c) above,
including the reference to RCW 9.41.092.
Safe storage.
This is
the trickiest issue. Safe storage of guns in the home often is
suggested as way of preventing gun deaths.
Accordingly, I-1639 requires that an application to purchase a firearm
contain this clause:
CAUTION: The presence of a firearm in the home has
been associated with an increased risk of death to self and others, including
an increased risk of suicide, death during domestic violence incidents, and
unintentional deaths to children and others.
That advice
is useful but, of course, it may be ignored.
Something to encourage compliance is needed, but disabling a gun from
immediate use is the one type of gun-control law specifically addressed by Heller. It held that “the District's . . .
prohibition against rendering any lawful firearm in the home operable for the
purpose of immediate self-defense” violates the Second Amendment. That would preclude safe-storage laws which
require gun owners to lock up their guns or provide trigger locks as
impediments to immediate use. However,
the drafters of the initiative may have found a way around the problem.
They got
off to a bad start in the preamble by seeming to mandate safe storage. The Initiative is described as “AN ACT
Relating to increasing public safety by implementing firearm safety measures,
including requiring . . . secure gun storage for all firearms. . . .” Later, it states: “Secure gun storage
requirements for all firearms will increase public safety by helping ensure
that children and other prohibited persons do not inappropriately gain access
to firearms . . .”
However,
in the operative sections, it takes a different, prudent approach. Instead of requiring safe storage, the new
law creates penalties for allowing a gun to be used in a way that harms
another: “Nothing in this section
mandates how or where a firearm must be stored.” However: “A person who stores
or leaves a firearm in a location where the person knows, or reasonably should
know, that a prohibited person may gain access to the firearm . . .[i]s guilty
of community endangerment due to unsafe storage of a firearm. . . .” The degree of the offense depends on the use
of the gun; one is guilty in the first degree if the “prohibited person” uses the
firearm to cause personal injury or death.
There is
no offense if: “ The firearm was in secure gun storage, or secured with a
trigger lock or similar device that is designed to prevent the unauthorized use
or discharge of the firearm . . .”
This strongly encourages safe storage — by penalizing its absence if
harm results — without mandating
it. Further, there is no liability,
even if the gun was not safely stored, if
the prohibited person “obtains, or obtains and discharges, the firearm
in a lawful act of self-defense . . . .”
Together, those exceptions satisfy Heller. Actually, the second exception is broader
than the Heller rule, which referred to self defense
“in the home.”
Another
provision further limits the reach of the law.
The “prohibited person” whose access to the gun may create liability is
defined as “a person who is prohibited from possessing a firearm under state or
federal law.” It isn’t clear, to me at
least, why liability, subject to the stated exceptions, doesn’t extend to any
and all who appropriate the original possessor’s firearm. Perhaps the argument is that a
non-prohibited person could have obtained a gun lawfully elsewhere.
In order to further encourage safe storage, the Initiative provides: “When selling or transferring any firearm, every dealer shall offer to sell or give the purchaser or transferee a secure gun storage device, or a trigger lock or similar device that is designed to prevent the unauthorized use or discharge of the firearm.” In addition, “Every store, shop, or sales outlet where firearms are sold, that is registered as a dealer in firearms with the department of licensing, shall conspicuously post, in a prominent location” a sign stating (in large type) Warning: you may face criminal prosecution if you store or leave an unsecured firearm where a person who is prohibited from possessing firearms can and does obtain possession.” In addition, upon the sale or transfer of a firearm, the dealer shall deliver a copy of that warning.
Apart
from the limited definition of “prohibited person” this seems to be as close as
a jurisdiction can come to requiring safe storage without running afoul of the
Court’s peculiar views on the Second Amendment.
Age limits.
Purchase
of pistols and SARs and possession thereof, with exceptions and no little
confusion, is limited to those who are at least twenty-one. As to purchase, the Initiative provides: “A
person under twenty-one years of age may not purchase a pistol
or semiautomatic assault rifle, and except as otherwise provided
in this chapter, no person may sell or transfer a semiautomatic assault rifle
to a person under twenty-one years of age.”(emphasis added) Why may a pistol be transferred to a young
person who may not purchase it?
The rules
regarding possession, are, to say the least, complex with again, a distinction
between weapons.
[A] person at least eighteen years of age, but less
than twenty-one years of age, may possess a pistol only: (a) In the person's
place of abode; (b) At the person's fixed place of business; or (c) On real
property under his or her control.
That is existing law; the Initiative applies those
permissions to SARs and, as to them, adds:
(d) For the specific purpose of (i) moving to a new
place of abode; (ii) traveling between the person's place of abode and real
property under his or her control; or (iii) selling or transferring the firearm
in accordance with the requirements of this chapter; provided that in all of
these situations the semiautomatic assault rifle is unloaded and either in
secure gun storage or secured with a trigger lock or similar device that is
designed to prevent the unauthorized use or discharge of the firearm.
The rationale for different rules for pistols and
SARs isn’t obvious.
I-1639
clearly is a step in the right direction, and seems to have finessed Heller on
safe storage. There should be more such
efforts.
Lawmaking
by initiative becomes necessary in the absence of action by the State
Legislature, but 1639 illustrates the problem inherent in the initiative
process. It is long, complicated,
containing more provisions than I have discussed, and is written in formal
legislative style — confusing enough even to those used to it — with many
subsections and references to existing law.
The likelihood that anyone who voted for or against fully understood it
is minimal.
______________________
63. For simplicity, I have referred to semiautomatic assault rifles as SARs.
64. The new law takes effect on July 1, 2019, except for the age limitations, which become effective January 1.
65. Heller was extended to the states in McDonald v. Chicago.
