DANIEL VAUGHAN: Washington’s anti-gun law may be unconstitutional

November 19, 2018

The state of Washington recently passed ballot initiative I-1639, which is widely considered to be one of the most draconian gun control laws in the country. The bill raises the minimum legal age to purchase a gun to 21, requires warning labels on firearms similar to those seen on cigarette packages, and bans out-of-state U.S. citizens from buying “semiautomatic assault rifles,” along with a bevy of new fees, storage rules, and training requirements.

The National Rifle Association (NRA) and The Second Amendment Foundation (SAF) filed a lawsuit in federal court alleging I-1639 violates the Firth, Second, and 14th Amendments, along with the interstate commerce clause and the state of Washington’s constitution. And there’s good reason to believe either the law in its entirety — or pieces of it — will eventually be struck down as unconstitutional under the federal constitution.

There’s a lot to unpack with I-1639, and any court will have to rule on the constitutionality of each specific requirement. I won’t go through each one here, but three particular provisions are likely to get struck down.

First, the ban on out-of-state American citizens from purchasing assault rifles, as defined by I-1639, almost certainly violates the interstate commerce clause in the U.S. Constitution. The pertinent section of the Constitution comes from Article I, Section 8: “The Congress shall have Power… To regulate Commerce… among the several States…”

The Constitution sought to create free trade by and between the states, with no restrictions, as Alexander Hamilton explained in Federalist 11: “An unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions.”

Under the Articles of Confederation, the states in the early colonies could tax other states and enact other barriers to trade within America. The Constitution ended that practice, leaving commerce between states and their citizens up to the federal government to maintain a unified internal trade system.

But Washington’s I-1639 bans people who aren’t citizens of Washington from purchasing “semiautomatic assault rifles.” In short, Washington, as a state, is blocking the free flow of goods to U.S. citizens based on their state citizenship. Under the interstate commerce clause, Washington doesn’t have the power to prevent the sales of firearms in this manner.

Second, the age and training requirements established by this law are also alarming. Generally speaking, across the country, the legal age of adulthood is 18.

In their lawsuit, two of the plaintiffs the NRA and SAF have lined up are both under 21, but have extensive training experience with rifles. One of the plaintiffs is a competitive shooter, and a member of the U.S. Long Range Rifle Under 21 team and competed at a world championship level. Another plaintiff is in the U.S. Army Reserve and has received extensive marksmanship training, beyond anything under Washington law, and used his off-time to maintain his skills.

Under I-1639, both a competitor and a man in the Army Reserve would be barred from purchasing semiautomatic assault rifles, even though, by any other metric, they and others like them aren’t going to cause any issues and have more experience than Washington is capable of describing.

In general, for a constitutional right, age restrictions are disfavored. There’s no age requirement for other amendments, like the First, Fourth, and Fifth. Age restrictions on things like driving and drinking alcohol are different because those aren’t constitutional rights — they’re privileges granted by the state.

In defense of the age increase, Washington says:

This makes sense, as studies show that eighteen to twenty-year-olds commit a disproportionate number of firearm homicides in the United States and research indicates that the brain does not fully mature until a later age.

The voting age is set in the Constitution at age 18, under the 26th Amendment. The federal government can draft or enlist anyone at age 18 as well, and military members would receive extensive firearms training. Additionally, in Washington, you can buy tobacco products, which contain Surgeon General’s warnings on them, at age 18.

Age restrictions on purchasing weapons fall into a grey area, and the Supreme Court hasn’t ruled on age restrictions yet, the closest case is a 2012 case in the Fifth Circuit. And it’s worth noting that on abortion rights, age restrictions are disfavored under current Supreme Court case law.

Finally, the warning labels fall into another gray area for First Amendment law. In the most recent Supreme Court term, the case National Institute of Family and Life Advocates v. Becerra struck down a law in California that required crisis pregnancy centers, generally run by pro-life groups, to have warnings up in their facilities informing women where they could get an abortion.

Advocates of the gun warning labels claim their signs are similar to health warnings on cigarettes, or nutrition labels on food. They’d call these warning labels “truth in advertising” types of restrictions.

Washington has two signs in their law: one posted on the application (which is likely fine), and one to be posted by every firearm store warning people that it’s against the law to allow someone to possess a firearm who isn’t legally allowed to own one.

After Becerra, it’s unclear whether forcing businesses to post warnings regarding guns would violate the First Amendment.

It also wouldn’t shock me if you see other lawsuits pop up regarding the uneven application of the law. A sheriff in Washington has already pledged he won’t follow I-1639 because he believes it violates the Second Amendment. Under I-1639, local police departments have an outsized role in issuing permits to purchase guns — and if the state doesn’t apply its standards in a standard fashion, that will raise more concerns.

These issues are just the tip of the iceberg with Washington’s law, and each section will be challenged. It’s just the latest example of how liberal states are trying every creative way possible to restrict the right to bear arms.

Fortunately, there’s likely a strong majority on the Supreme Court now that believes that assault weapon bans and similar laws are unconstitutional. So while the pain for pro-Second Amendment groups is high right now, there are signs broader Second Amendment rights are coming.

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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.