In a Law360 article discussing last week’s Supreme Court decision to expand gun rights, Professor Thomas Lee shares his insight on the decision’s impact.
The U.S. Supreme Court’s expansion of gun rights Thursday was one of the largest in recent history and is certain to erode strict gun control laws in some states, and while resistance strategies are available, it won’t be easy to circumvent the decision, experts said.
…
Thomas Lee, a Fordham University School of Law professor and constitutional expert, said the other jurisdictions with similar gun-carrying laws — California, Hawaii, Maryland, Massachusetts, New Jersey and Washington, D.C. — are not likely to withstand constitutional challenges that are either waiting in the wings or will soon be filed.
But alternatives for those jurisdictions and New York may be available, Lee said, since the opinion mentions two carveouts that lawmakers in those states and D.C. may try to implement in any new gun control legislation.
A colonial-era statute barred the bearing of “dangerous and unusual” firearms in a manner that spread fear or terror among the people, according to the opinion. Lee said that states may try to prohibit the carrying of assault weapons such as AR-15s since they could argue that such actions could spread fear among the public.
“I would think that an assault rifle ban would be constitutional under the fear and terror exception,” Lee said. “Because Justice [Clarence] Thomas wrote the opinion the way he did, any lawyer challenging or defending that law would then have to argue what the state of law was like in 1868,” when the Fourteenth Amendment and its due process clause applying to states was enacted.
Another approach would be for the states and D.C. to pursue the “sensitive places” exception, which bars the carrying of guns in courts and legislatures, according to Lee.