Does the Second Amendment protect an American’s right not to bear arms? That’s a key question raised by a lawsuit filed with the U.S. District Court in Northern Georgia last month.
The Brady Center to Prevent Gun Violence is challenging the constitutionality of Nelson, Ga.’s Family Protection Ordinance, which requires every head of a household living in the city to own and maintain a firearm, along with ammunition.
Gun ownership is already widespread in Nelson, a rural town of 1,300 residents north of the Atlanta metro area, with virtually no violent crime. The city council passed the gun mandate in April, at a time when lawmakers in other states, such as New York and Colorado, were imposing new restrictions on guns.
Not everyone who lives in Nelson will have to purchase a gun. The measure exempts people who say they can’t afford a gun, aren’t able to own or operate a gun due to a disability, or “conscientiously oppose maintaining firearms as a result of beliefs or religious doctrine.”
The ordinance states that the requirement promotes safety and security, but “most Americans choose to protect their homes and families by keeping guns out of them,” says Jonathan Lowy, director of the legal action project at the Brady Center. Polling this year shows that roughly two-thirds of American households don’t have a firearm.
The Brady Center complaint argues that the ordinance infringes on people’s First, Second and 14th Amendment rights. Because laws mandating gun ownership are so rare, courts haven’t had to weigh in on people’s rights not to bear arms. However, Joseph Blocher, an associate law professor at Duke Law School, anticipated the crux of the Brady Center’s legal rationale in a Stanford Law Review article last year.
With the rights to free speech and to bear arms, Americans have an implicit right not to engage in either activity protected by the Constitution, Blocher argued. With respect to gun rights, the Supreme Court decided in District of Columbia vs Heller in 2008 that the underlying purpose behind the right to bear or keep arms is self-defense, especially in the home. While the first and obvious meaning of self-defense might be fending off an intruder, self-defense in the broader sense could include minimizing the risk of accidental shootings and suicide. If people believe guns increase their chance of injury at home, then they might cite personal safety as a rationale for not owning guns. Since the core purpose would be the same, not owning guns would also be protected by the Second Amendment.
“It’s kind of a libertarian argument,” Blocher observed. “It’s not an argument for gun control. It’s an argument against a particular kind of government regulation.”
The lawsuit’s outcome could impact other local governments. The town of Nucla, Colo., population 711, passed an ordinance in May that’s almost identical to Nelson’s. Kennesaw, Ga., has had a similar ordinance on the books since 1982.
“After reading that lawsuit, I’m totally confused,” said Richard Craig, a Town Board Trustee in Nucla. If residents don’t want to own guns, Craig said, the ordinances provide broad exemptions.
When the ordinances passed in Nelson and Nucla this year, local public officials noted that the ordinances were symbolic gestures and police wouldn’t enforce them. “It’s kind of saying to anybody who comes into the area: We are armed,” Craig said.
Lt. Craig Graydon of the Kennesaw Police Department agrees. Since his city passed the gun mandate in 1982 -- the inspiration for Nelson’s recent ordinance -- no one has tried to enforce it. “That’s what I suspect will happen in Nelson. It’s a resolution in ordinance form,” Graydon said. “It was never meant to be enforced and it’s impossible to enforce.” Because Georgia doesn’t require a gun registry, Graydon said, there’s no way for police to know who does and doesn’t own a gun.
Lowy, of the Brady Center, isn’t swayed by the explanation that the ordinances are just symbolic. After all, today’s city council can’t guarantee that a future city council or police chief won’t decide to start enforcing the ordinance. “There are citizens who choose not to be law breakers, who take the law very seriously and don’t want to violate it,” Lowy says. “If they feel the law is unconstitutional, their remedy is to take it to court and have it struck down as unconstitutional.”
The plaintiffs in the Brady Center’s lawsuit include Harold Kellett, a Nelson city resident who purchased a .45 caliber handgun and .45 caliber ammunition after the ordinance passed. Although the Brady Center is a national organization based out of Washington, D.C., it has about 20 members in Nelson, according to the lawsuit.
Nelson’s attorney, Jeff Rusbridge, said the city had not answered the Brady Center’s complaint yet, but did intend to defend the lawsuit.