The Second Amendment has been interpreted to give anyone the right to own weapons, ostensibly to protect one’s person and property. That was the late Justice Scalia in the Heller case, a decision that is having unintended consequences. Because the person now has a Constitutional Right to that gun, taking that right away becomes a constitutional issue.
Now, the Congress is having difficulty stopping sales to a person on the no fly list. Senator Cornyn of Texas is advocating giving the purchaser so the FBI can check into it. Senator Feinstein of California, Vice Chair of the Senate Intelligence Committee advocates that the sale should be stopped, and the purchaser has a right to a hearing afterward. The Feinstein proposal keeps the gun out of the purchaser’s hand, at least legally.
The problem comes when a homeowner sues over the waiting period, claiming that the waiting period defeats the right to bear arms when needed. If you get a gun because your home is under threat, then a 72 waiting period defeats the homeowner’s ability to get immediate protection.
If the Supreme Court reexamines the Second Amendment, finding that there is no individual right to own or buy a gun, this notice issue disappears. I wonder if the NRA ever expected to find itself at odds with its own position on guns and advocating a waiting period. Or that one of the leading Democratic Senators would be fighting for a non-judicial ban of the sale with the hearing to follow.
The AR-15, available at gun shops, gun shows and toy stores.
In some ways, the Heller case is a worse decision than Citizens United, that opened the floodgates of money into political campaigns. With an opening on the Supreme Court and the probability that Scalia’s replacement will join the Court’s left wing, you expect a fusillade of Second Amendment cases from the left,dissecting the terms of the amendment, drawing distinctions between keeping or owning, defining what constitutes arms, etc, the kind of scrutiny and narrowing that the pro-choice movement has brought to Roe v. Wade litigation. Unfortunately, it’s unlikely that the Court would overrule the 2008 decision so soon after it was issued. It would simplify the law enforcement issues, eliminate the need for a hearing and, most importantly, would correctly interpret the Constitution.