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.1 It amends the existing law on firearms, RCW 9.41.2 How do the initiative’s provisions fare when compared to the language in Heller? In addition, does existing law raise questions? 3
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.
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.
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.