Heller, McDonald and Caetano Second Amendment

The issues to be considered in this fact pattern are:

  1. Whether the State’s demand that Mr. Patterson forfeit his automatic weapon due to the State’s determination that his mental health history precludes him from the ability to register his automatic weapon pursuant to Varneyland law, is a violation of his second amendment right to bear arms?
  2. Whether Mr. Patterson’s arrest and subsequent conviction was based on Varneyland law which violated Mr. Patterson’s Second Amendment right to bear arms and should be reversed. 

The Second Amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” [1]

The three most recently decided Supreme Court cases involving the Second Amendment right to bear arms are the Heller, McDonald and Caetano cases. [2] [3] [4]

In Heller, Heller was denied the ability to register a handgun because of a District of Columbia ban on handgun possession and a requirement that handguns be kept in a non-operational status. The court in Heller held that the ban on handguns violated the Second Amendment right to bear arms and that the requirement to keep a firearm in an inoperable condition was also a violation of the Second Amendment because keeping the firearm inoperable negated the ability to use the firearm as intended in a self defense situation.[5]

While Heller did not touch upon the specific subject matter of automatic weapons, the Court made it clear that the Second Amendment’s right to bear arms should not be infringed upon unless a person is disqualified from the right to bear arms. [6] Without a disqualifying factor, Mr. Patterson would seem likely to prevail in his claim. However, the State contends that Mr. Patterson’s mental health history is on its face, proof that Mr. Patterson should be disqualified from exercising the right to bear arms. 

To determine whether the State has a valid right to disqualify Mr. Patterson, a court might use intermediate scrutiny to determine if it is proper for the State to use adverse mental health histories to give rise to a disqualifying factor. The standard of review when applying intermediate scrutiny is that a “challenged law must further an important government interest by means that are substantially related to that interest.” [7] Because the institution of the automatic weapon registration law was a direct result of a person with an adverse mental health condition, who obtained and used an automatic weapon to enter a school and kill three teachers and ten students, it is evident that the challenged State law furthered the State’s interest in protecting the populous by keeping automatic weapons out of the hands of people who either have a mental illness, or have a history of mental illness. Because of this fact and the fact that the Supreme Court has failed to grant certiorari to numerous cases involving the issue of State bans on the possession of automatic weapons, it is likely that a Court will find against Mr. Patterson and hold that the Varneyland law is constitutional. Thus, the resulting arrest and conviction of Mr. Patterson is likely to be held as constitutional and not in violation of  his Second Amendment rights. 

In McDonald, the issue was also a requirement to register a firearm, but since the State had failed to issue any new firearm registrations for almost thirty years and because one could not possess a firearm without it being registered, this refusal to permit registrations was in fact a ban on the possession of firearms and both the Court in McDonald, as well as Heller affirmed the Second Amendment right to bear arms. [8] While this case did not specifically touch on the issue of automatic weapons, it did point us back to the holdings in Heller where the relevant issue was the disqualification factor.

Then in Caetano, the issue was whether a stun gun fell under Second Amendment protections. The Court held that it did. The Court held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding” and that “the Second Amendment right is fully applicable to the States.”[9] The implications in Caetano are that while not explicitly mentioned, the automatic weapons in this fact pattern are considered to be bearable arms. As such, they fall under the protections of the Second Amendment but are also subject to the Heller disqualification clause.

After a careful review of the following three recent Supreme Court cases, it seems likely that a court would rule that a disqualifying factor does exist which disqualifies Mr. Patterson from possessing automatic weapons and because of this fact, Mr. Patterson’s Second Amendment rights have not been violated. 

[1] U.S. Const. amend. II.

[2] District of Columbia v. Heller, 554 U.S. 570 (2008).

[3] McDonald v. Chicago, 561 U.S. 742 (2010).

[4] Caetano v. Massachusetts, 136 S. Ct. 1027, 577 U.S., 194 L. Ed. 2d 99 (2016).

[5] Heller, supra.

[6] Id.

[7] Intermediate Scrutiny LII/Legal Information Institute (2009), https://www.law.cornell.edu/wex/intermediate_scrutiny (last visited Jul 29, 2017).

[8] McDonald, surpa.

[9] Caetano, supra.