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Crime & Justice

Does the Second Amendment leave room for any gun control laws?

The AR-15 assault rifle
The AR-15 assault rifle
Stock photo by betancourt via Flickr Creative Commons

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Following Wednesday's filibuster in the Senate led by Connecticut Democrat Chris Murphy, Republican leaders have agreed to hold votes on two pieces of legislation: expanded background checks and allowing the attorney general to prohibit gun sales to people on terrorism watch lists.

California Senator Dianne Feinstein introduced the ban on gun sales to suspected terrorists in December, following the mass shooting in San Bernardino. It failed 45-54.

In American culture, the Second Amendment means something different than what it means in court.

To talk about the current state of gun control laws and other legal gun battles, Take Two spoke to Eric Ruben, a fellow at the Brennan Center for Justice at the NYU School of Law who focuses on the Second Amendment.

Interview highlights

On the Second Amendment, its history and lower court challenges:

"The Second Amendment reads: '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.' And as a preliminary point, it's important to note that until about thirty years ago, people generally viewed the Second Amendment as being limited by the "militia" clause. There was a ...multi-decade effort to interpret the Second Amendment to provide an individual right to self-defense, and in 2008, the Supreme Court adopted the individual right view of the Second Amendment. In doing so, it struck down a ban on handguns that was in place in the District of Columbia, but the Supreme Court went to great lengths to caveat its ruling. It said it should not be read to cast doubt on any long-standing prohibitions on firearms, and since the Supreme Court's decision in 2008, lower courts have been upholding  a whole range of gun laws in the face of Second Amendment challenges."

On whether the Second Amendment holds up with assault weapons:

"One thing that's highly relevant now is whether the government can ban so-called assault weapons and large capacity magazines—the magazines that hold ten or more bullets and that have been used in mass shootings. And most of the courts that have considered this question have upheld those laws in the face of Second Amendment challenges..."

On a lawsuit brought by Sandy Hook victims' families against gun manufacturers:

"The Sandy Hook lawsuit is brought by ...some of the victims of the 2012 shooting in Newtown, and what the plaintiffs are saying is that the sale and marketing of the assault weapon by Remington and River View Sales constitute a so-called 'negligent entrustment' and in order to understand the case, it's important to understand first that in 2005, Congress gave the firearm industry broad immunity from all sorts of lawsuits—immunity that other manufacturers and dealers in dangerous products don't have. And there are a few exceptions to that immunity statute. For the most part, the immunity statute has made it very difficult for gun violence victims to sue the gun industry. In fact, only two cases since 2005 have made it to jury, and the Sandy Hook plaintiffs are trying to squeeze through this negligent entrustment exception to the immunity statute and they're saying in essence that because Bushmaster and the dealer knew—or reasonably should know—that the assault weapons it was selling could be used to cause unreasonable risk of injury that that constitutes negligent entrustment, that's the definition of negligent entrustment."

"What the plaintiffs are asserting is that the assault rifle was designed for war, it's the same platform as what is used by the military, and it's marketed to the civilian population in a way that emphasizes its militaristic qualities. The sellers, according to the plaintiffs, should have known that the assault weapons are attractive to mass shootings and would be likely to be used in one."

To listen to the full interview, click the blue audio player above.