Apr 9

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Constitution Check: Can a local government order every family in town to have a gun?



Posted 1 year, 0 months ago.

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Houston_Gun_Show_at_the_George_R._Brown_Convention_CenterLyle Denniston looks at whether a Georgia town can really tell every homeowner to have a gun inside their house.

The statements at issue:

“After weeks of national media attention and debate among residents, members of the Nelson City Council stuck to their guns and unanimously voted to enact a law that requires every head of household within its city limits to own a firearm.”

City Councilman Duane Cronic said a section of the ordinance “could exempt basically any of Nelson’s about 1,300 residents; the ordinance is meant simply as a message to any criminals and was never intended to be enforced.”

“Nelson Police Chief Heath Mitchell, the city’s lone police officer, said he was happy to see the law added to the books, and he too hopes it will help keep crime out of Nelson.  He admitted, though, that it will most likely never be enforced.”

 – Selected paragraphs from a story by Joshua Sharpe in The Cherokee Tribune in Canton, GA, on April 3, describing the approval of the “Family Protection Ordinance” by a 5-0 vote of the City Council in the town of Nelson, GA, on April 1.

We checked the Constitution, and…

If the U.S. Congress were to pass a law like the one just enacted in Nelson, Georgia, there is little doubt that it would violate the Constitution.  Congress has no power to order individuals to buy a product they do not want; that was one of the conclusions the Supreme Court drew last year even as it upheld the new federal health care law based on other congressional powers.   And Congress has no power to implement the Second Amendment by compelling everyone to “keep and bear arms.”

But the constitutional answer is not so easy when a local government passes such a law.  Local governments share with state governments very wide authority to pass laws under what are called “police powers” – that is, laws that seek to protect public health and safety.  Those are core functions of local and state government, reserved to them by the Constitution’s 10th Amendment.

But there may be limits on the use of such powers.  A local government may not have broad powers of “home rule,” because state law may curb the expansive use of such authority.  In Maine, for example, when a town sought recently to pass a gun ownership mandate like the one in Nelson, the state attorney general ruled that was beyond local authority; state law controlled the issue of gun control, the official said.

If a local government does as the city legislators in Nelson did, and includes in a gun ownership mandate a broad exemption for anyone who objects, the law would be very difficult to enforce because each head of household would have to be questioned on whether they object.  That could keep local police busy full time.

But suppose an ambitious local police force decided at least to attempt to enforce it: Can gun ownership be compelled?  The Second Amendment does not deal with that issue at all; it is an amendment that, as interpreted by the Supreme Court, protects a personal right to have a gun, but it does not compel the exercise of that right.

The issue, then, is whether such a mandate could be justified as a public safety measure. Assuming that the particular community was not under a siege by criminals, there would be serious questions about whether a gun ownership requirement was an intrusion upon individual liberty, one not truly supported by public safety concerns.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

If, however, there had been a serious wave of criminal activity locally, a local government might argue that it was necessary to deputize and arm the whole of its citizenry for community defense – rather like the militia from America’s colonial days.   (Today, Second Amendment advocates argue that it is a significant part of the history of gun rights that colonial residents were, indeed, ordered to be armed.)

Even with a crime wave in a given community, though, a local resident who chose – for whatever reason – not to get a gun might be able to convince a court that an ownership mandate for everyone was a form of official coercion not necessary to promote public safety.  The argument might be that a state government could be expected to step in, with its stronger law enforcement resources, to quell widespread crime in such a community.

In the case of the specific ordinance in Nelson, even the City Council apparently did not mean what it said in seeking to impose the ownership mandate.  The first paragraph of the ordinance makes that command, requiring all heads of households to have a gun and ammunition as a way to protect the “general welfare of the city and its inhabitants.”

It is the second paragraph, however, that spells out the exceptions to this requirement, and that includes those who object to having a gun.   That is why the sponsor of the measure, City Councilman Duane Cronic, said it would not be enforced, and why the local police chief echoed that view.

Why was it passed?  The councilman’s answer: “This is a big security sign that says ‘you really don’t know what you’re getting into, potential criminal; move along.’ ”

But, one might ask, would a determined criminal conclude that Nelson was an armed enclave, or not?

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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