Constitutional Analysis on H.230

Under the Bruen and Heller opinions, the provisions in H.230 should be deemed constitutional under the Second Amendment. The Supreme Court’s test in Bruen, once again, is the following: “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”

Starting with the Secure Storage provisions:

Under the Supreme Court’s test, we must ask what the conduct is that H.230 is regulating and whether the Second Amendment’s plain text covers that conduct.

The firearm must be securely stored when it is not being carried or in close proximity to the owner or authorized user.

The plain text of the Second Amendment guarantees the right to keep and bear arms.

As explained in the Heller opinion, to keep arms means to have weapons or to possess them.

The secure storage provisions in H.230 do not impinge on one’s right to have or possess firearms.

To bear arms, as explained in Heller, means to “wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.” It means to “carry weapons in case of confrontation.”

The secure storage provisions in H.230 do not prohibit an owner or authorized person from carrying a firearm in the home. It also does not prohibit an owner or authorized person from having a firearm in such close proximity that it can be readily retrieved and used. The bill also explicitly states that there is no violation if a child or prohibited person accesses and uses the firearm in self-defense or defense of another person.

So, in the first instance, H.230 does not impinge on the right protected by the Second Amendment.

Assuming that the conduct is covered by the text of the Second Amendment, one would look to whether the regulation is consistent with the National historical tradition of firearms regulations.  As explained in Bruen, (may I quote)

“(T)his historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are “relevantly similar.”

“To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one hand, courts should not “uphold every modern law that remotely resembles a historical analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have accepted.” On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.”

There are analogous provisions related to firearm storage. For example, as recognized in a different context in the Vermont Supreme Court case, State of Vermont v. Misch, “Vermont’s 1863 gunpowder storage law, which required more than one pound of powder be securely stored in a metal canister, placed a burden on the ability to rapidly prepare and fire multiple rounds of ammunition.”

There are other Vermont and National historic regulations that are also analogous. But a court need not undertake that analysis because, as I explained, the secure storage provision does not infringe on the right to keep and carry a firearm for self defense.

The secure storage provisions in H.230 simply do not impinge on the Second Amendment’s right to keep and bear arms.

Moving to the ERPO provisions.

As stated in Heller, nothing in the Supreme Court’s “opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.”

Laws prohibiting possession of firearms by felons and the mentally ill provide apt analogies for the ERPO law, which bars an individual who is an immediate danger to themselves or others from possessing a firearm. Such laws aim to keep firearms from those who presumably may misuse them.

There are several dozens of historical laws related to limiting access to firearms by people deemed dangerous, just as ERPO laws do.

The ERPO provisions of H.230 should be deemed constitutional.

Moving to the Waiting Period provisions.

First and foremost, the best support for the constitutionality of laws regulating the sale and transfer of firearms is the limiting language from Heller that Bruen made clear to not disturb. The Supreme Court went out of its way to identify “laws imposing conditions and qualifications on the commercial sale of arms” as “longstanding” and “presumptively lawful.” District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008).

A waiting period would impose a condition on the sale of arms, not on the right to possess and carry weapons in case of confrontation and not on the right to keep and bear arms.

The plain text of the Second Amendment, as at least one court has found, does not address the sale and transfer of arms.

Also there are nearly 80 historic laws regulating aspects of sale and manufacture of firearms. There’s no shortage of historical analogs for courts to parse through if and when any provision of H.230 is challenged.

The best historical analogues are two laws from Maine and Massachusetts that regulated the sale and transfer of firearms by setting safety standards that any firearms sold needed to meet. Those laws are on the Judiciary Committee’s webpage. 

Notably, colonial government regulation included some restrictions on the commercial sale of firearms. In response to the threat posed by Indian tribes, the colonies of Massachusetts, Connecticut, Maryland, and Virginia all passed laws in the first half of the seventeenth century making it a crime to sell, give, or otherwise deliver firearms or ammunition to Indians.

At least two colonies also controlled more generally where colonial settlers could transport or sell guns. Connecticut banned the sale of firearms by its residents outside the colony.

And under Virginia law, any person found within an Indian town or more than three miles from an English plantation with arms or ammunition above and beyond what he would need for personal use would be guilty of the crime of selling arms to Indians, even if he was not actually bartering, selling, or otherwise engaging with the Indians. 

Citations for these laws can be found in the case Teixeira v. Cnty. of Alameda, 873 F.3d 670, 685 (9th Cir. 2017), which is on the Judiciary Committee webpage.

In short, the waiting period provisions of H.230 impose conditions and qualifications on the commercial sale of arms and should be deemed constitutional.

You all can feel confident that the provisions of H.230 have been well-drafted to withstand constitutional challenges and are good policy.

Regarding claims that Heller found firearm storage laws unconstitutional:

• This is an incorrect reading of the Heller decision, which made clear that it was not striking down such laws (see page 60 of the decision): “Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents.” Courts have subsequently upheld state secure storage laws,including the Ninth Circuit.

• Heller invalidated a law that required people, as interpreted by the Supreme Court, to keep guns unloaded even if under attack in their homes. That’s not what any secure storage laws do, as the Court itself recognized.

Since Heller, courts have upheld the constitutionality of secure storage laws.