The Second Amendment Is Clear, but Gun Laws Are a Minefield

I teach firearms law at the law school level. I often caution my students: “Do not, under any circumstances, attempt to apply logic to firearms regulation. You run a serious risk of stroke.” 

Even though to many people, it seems that the words, “shall not be infringed” in the Second Amendment are crystal clear, the body of law that has built up around the right to keep and bear arms is voluminous, particularly at the state level. The classic estimate of “20,000 gun laws on the books” may not be wholly accurate. But, there are certainly far too many gun laws for travelers to memorize. They are complex, confusing, and in many cases, contradictory. Furthermore, one cannot reason one’s way through firearms regulation. They are often based on what can be charitably referred to as wishful thinking.  

In law school, students learn to distinguish between two categories of criminal laws: malum in se, and, malum prohibitum. Malum in se crimes are evil in themselves. The most common example is murder. All legal systems prohibit murder because it is generally accepted to be inherently wrong. By contrast, firearms laws create malum prohibitum crimes, the prohibited behavior is criminal simply because the law says so. The wrong is not immediately apparent to a reasonable person. An example would be possession of a shotgun with a barrel less than 18 inches long. There is obviously nothing inherently evil about a 17-inch shotgun barrel. But, because of the National Firearms Act of 1934, the mere possession of such a shotgun, without having registered and paid the required tax, can mean 10 years in prison. By nature, most gun laws are arbitrary and capricious. They usually have no real connection to acts that are certainly wrong. 

In general, most laws are state laws, as opposed to federal. A handful of states allow local government units, such as cities and counties, to create and enforce their own firearms ordinances. They are the “home rule” states, each with a patchwork of various schemes that create a legal minefield for gun owners. Simply crossing an invisible boundary line can transform peaceful, otherwise lawful behavior into a felony that could lead to prison time. Without preemption, it becomes risky to travel with firearms at all, much less carry for self-defense. Preemption statutes generally prohibit local units of government from regulating firearms. The goal is to create a consistent statewide regulatory scheme that allows gun owners some peace of mind. However, even in the majority of states that have preemption statutes on the books (over 40 at last count), there may be issues with certain activities such as target shooting or hunting. Even local zoning laws can be invoked to attack otherwise lawful and safe ranges. 

Michigan, where I live and practice law, has had a fairly solid preemption statute in place since the early ’90s. It says that no local unit of government can regulate the purchase, transfer, or possession of firearms. This leaves discharge open to regulation and zoning can control where business activities, such as gun shops and ranges, can operate.

There are other holes as well. Recently, our Supreme Court held that school districts are not “local units of government” and are not necessarily preempted. They overturned a lower-court case that had ruled that there was something called “field preemption.” This is when the state has so thoroughly regulated something that there is no room for local governments to get involved. They left open the question of “conflict preemption” which is when a local unit of government is in direct conflict with state law. 

I’m currently representing a gun owner who lives and works in Ann Arbor, Michigan. He found out that the University of Michigan has an ordinance prohibiting all guns on its campuses. This would seem to be easy to deal with in the post-Heller era when the Supreme Court of the United States has held that the Second Amendment protects an individual right to possess a gun for self-defense and that the word “bear” in “…keep and bear arms…” means “to carry.” But, the University won at the trial court level and then again Michigan Court of Appeals, by successfully arguing that they aren’t a “local unit of government” and that they are a “school” which is specifically listed in Justice Scalia’s list of “sensitive places” in the Heller opinion. We’re at the Michigan Supreme Court now where we’re arguing, among other things, that it’s not okay for a University to deprive visitors (including patients who are referred for treatment to their large hospital system) completely of their fundamental, enumerated Constitutional right to keep and bear arms. 

So, even in a state that has had a solid preemption statute for going on 30 years now, there are still pockets where gun rights are in question.

The opinions expressed by columnists are their own and do not necessarily represent the views of AmericanActionNews.com.

Steven Dulan

Steve Dulan is a former U.S. Army Infantry Sergeant who practices and teaches law in Michigan where he lives with his family, which includes two exhausting children and a woman who luckily hasn't yet figured out that she's out of his league. He serves on the Board of Directors of the Michigan Coalition for Responsible Gun Owners (www.mcrgo.org). He's made many appearances on national television and radio, and most Friday mornings can be heard on the syndicated Steve Gruber Show.