Supreme Court Begins Answering Lingering Questions About Constitutional Constraints on Gun Control

Over the course of 12 days last month, the Supreme Court upheld the gun rights of cannabis consumers, rejected Hawaii’s default rule against firearms on private property open to the public, and agreed to address the constitutionality of “assault weapon” bans. That flurry of Second Amendment activity underlines the point that supposedly sensible gun regulations are not necessarily consistent with the right to arms as it was historically understood.

When Congress enacted the Gun Control Act in 1968, legislators took it for granted that an “unlawful user” of marijuana, depressants, stimulants, or narcotics should not be allowed to own a gun. They reaffirmed that judgment in 1986, changing the wording to encompass unlawful users of “any controlled substance.”

Although the latter law was dubbed the Firearms Owners’ Protection Act, it obviously did not protect gun owners with a taste for politically disfavored intoxicants, or even gun owners who dared to use medications prescribed for friends or relatives. It treated all those people as felons.

That policy, the Supreme Court unanimously ruled on June 18, is unconstitutional unless there is evidence that a particular drug user’s gun possession would pose a danger to himself or others. It rejected the Trump administration’s attempt to prosecute a Texas cannabis consumer who owned a pistol, saying the government may not strip people of their Second Amendment rights simply because they are marijuana users.

The justices reached that conclusion based on “this Nation’s historical tradition of firearm regulation”—the lodestar of the Court’s Second Amendment jurisprudence. Applying the same test a week later, six justices said Hawaii had violated the Second Amendment by making it illegal for carry-permit holders to bring guns into a private business without the owner’s explicit permission.

As Hawaii presented it, that presumptive gun ban merely aimed to protect preexisting property rights. But as Justice Samuel Alito noted in the majority opinion, Hawaii’s law “departs sharply from the standard common-law rule on access to private property held open to the public.”

Under that rule, “everyone, including those lawfully carrying firearms, may enter unless expressly prohibited from doing so,” Alito wrote. “By contrast, under the new Hawaii law, no one carrying a firearm may enter without the property owner’s express authorization.”

That switch, Alito noted, imposed “severe restrictions on the daily activities” of residents with carry permits. Nor was that effect incidental, since Hawaii was attempting an end run around the Supreme Court’s 2022 decision recognizing a constitutional right to carry handguns in public for self-defense.

Five days after it overturned Hawaii’s law, the Court agreed to hear a pair of cases involving bans on widely owned rifles that politicians tendentiously describe as “assault weapons.” A dozen states, beginning with California in 1989, have enacted such laws, which hinge on arbitrarily prohibited features such as folding stocks, pistol grips, and barrel shrouds.

The rifles targeted by these laws are rarely used by criminals but commonly used by law-abiding Americans, who own more than 30 million of them. The latter point is constitutionally relevant because the Supreme Court has said the Second Amendment applies to “bearable arms” that are “in common use” for “lawful purposes like self-defense.”

The long-simmering question posed by these cases is whether the Second Amendment guarantees “the right to possess AR-15 platform and similar semiautomatic rifles.” If so, other restrictions on the arms Americans are allowed to buy, such as magazine limits and California’s handgun specifications, may be vulnerable to constitutional challenges.

The decided cases also have potentially broad implications. If drug use, by itself, does not justify disarming someone, what about a nonviolent felony conviction? And if Hawaii’s broad restriction on public gun possession was unconstitutional, the far-reaching, location-specific bans imposed by states such as California and New York likewise seem legally dubious.

Nearly two decades after recognizing a constitutional right to arms, the Supreme Court is beginning to address lingering questions about its contours. Control-happy politicians probably will not like the answers.

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