In State Legislatures, the Gun Lobby Hits Its Target
By Jake Grovum, Special to Stateline
When the Virginia Legislature recently passed a bill allowing people to carry guns in bars as long as they have a permit, the move raised eyebrows in the state and across the country. Former Governor Tim Kaine, a Democrat, had vetoed a similar bill in 2009. And this year, Virginia's association of police chiefs loudly urged the state's new governor, Republican Bob McDonnell, to veto the bill.
"We can fully expect that at some point in the future a disagreement that today would likely end up in a verbal confrontation, or a bar fight, will inevitably end with gunfire if you sign this legislation into law," Virginia Beach police Chief Jake Jacocks Jr. wrote in a letter to the governor.
McDonnell signed the bill anyway, one of more than a dozen pro-gun bills Virginia approved this year; the guns-in-bars law is set to take effect next week. It was one victory for gun-rights advocates in what has been a fruitful year for them in state legislatures. Tennessee lawmakers passed a law similar to Virginia's, over the veto of Democratic Governor Phil Bredesen. Georgia lawmakers lifted a prohibition against drinking alcohol while carrying a gun in public, and made it legal for people to carry guns in some areas of airports. And Indiana approved a measure allowing employees to take guns with them to work as long as they're kept out of sight in a locked vehicle on a company-owned parking lot.
Next week, gun-rights advocates may have even more to cheer about. On Monday, the U.S. Supreme Court is expected to decide a case that could open more state gun-control laws to legal challenges. The case, known as McDonald v. City of Chicago , will decide whether that city's complete ban on handguns violates its residents' 2 nd Amendment right to bear arms. Two years ago, the court decided that a similar law in the District of Columbia did violate the 2 nd Amendment, and many legal experts expect the court to extend that precedent to state and local gun laws around the country.
Robert Weisberg, a criminal justice expert at Stanford University Law School, is one of them. "There's no question," he says, "that there will be a huge increase in lawsuits against lots of state and local laws."
Still, Weisberg points out that if the Supreme Court rules as expected, it's no guarantee that state and local gun laws will be thrown out. Both the D.C. and Chicago laws were quite draconian by nature — outright bans on certain guns in the cities — which made them more susceptible to a constitutional challenge. Convincing a court to find weaker regulations in violation of a person's 2 nd Amendment rights won't be an easy task.
A states' rights argument
In the legislatures this year, the most recent wave of action is part of a trend toward states loosening gun laws in the wake of the 2008 presidential election. Some saw the return of a Democratic administration in Washington as a sign that gun control could once again become an issue of national political and legal significance. There's also been hints of the states'-rights sentiment that has fueled state lawsuits against the federal health care overhaul, as well as anger toward Washington in general.
Some advocates of stricter gun controls say the legislative damage hasn't been as bad as it might seem. Brian Malte, the state legislation and politics director at the Brady Campaign to Prevent Gun Violence, says that while some states have moved in a more pro-gun direction, it's mostly states that already were considered gun-friendly in the past. "They have been successful in some of these states," Malte admits, "but it's the same states."
Malte points to states such as California, Illinois and much of the Northeast, where he says gun advocates have largely failed to make inroads. And gun-control advocates have played offense some this session, too. In New York State, for example, the Assembly passed "microstamping" legislation, before the bill stalled in the Senate, although supporters hope to revive it this fall. The bill would require that semiautomatic pistols made or sold in the state stamp cartridges with the make, model and serial number of the gun when it's fired. In California, the Assembly passed a bill that would ban the practice known as "open carry," which allows people to carry an unloaded gun in plain sight, even if the person also is carrying ammunition as well.
Still, gun-rights advocates are feeling emboldened enough to try new tactics in the legislatures and the courts. Last year, Montana and Tennessee enacted a law called the "Firearms Freedom Act," a measure that exempts guns and ammunition made, sold and used within the states from federal regulations. This year, the same law was passed by six more states: Alaska, Arizona, Idaho, South Dakota, Utah and Wyoming. Advocates say the measure is a matter of states' rights. The federal government has no business regulating guns and ammunition that are not part of interstate commerce, they say.
Last October, on the day Montana's law went into effect, gun-rights supporters filed suit against the federal government, seeking to nullify federal gun regulations. The case is in the early stages, but the U.S. Justice Department and the Bureau of Alcohol, Tobacco, Firearms and Explosives have repeatedly discounted the validity of the Firearms Freedom Act, arguing that federal law still requires a license to manufacture or sell guns and ammunition, regardless of whether those materials travel across state lines, and that regulating the firearms is within federal authority.
Dave Workman, senior editor of Gun Week , which is owned by the 2 nd Amendment Foundation that is party to the Montana lawsuit, says the law was designed to force the interstate commerce argument into the courts. He describes the Firearms Freedom Act as more of a "movement" than simple legislation. "The underlying motive is really the states kind of flexing their muscle at the federal government," Workman says. "It's kind of a shot across the bow of Congress."