Friday, December 2, 2011

Emancipation Day

“How much would you pay to get out of jail?” – Older Sister

My ex-wife moved out of our (now, my) house a year ago today.  My clearest memory of that day is the sound the front door made when I closed it upon coming home from work.  Without rugs or furniture nearby, it was a hollow sound that echoed off of the now emptied living room to the immediate left of the door.  I hate that sound.  I remember inventorying the house, what had been left, what was now gone, and exhaled, deeply, that the months of low level sniping and bickering, which sometimes spilled over into the most venomous arguments I had ever experienced, were now over. That two people with modest savings and no children could argue so bitterly spoke more to the raw feelings of hurt, betrayal and a sense of opportunities (and time) lost than anything else. Emotionally and psychologically, the next few weeks were blurry.  In the light of the following day, I discovered that enormous caches of “stuff” I assumed would be taken were still there.  I unearthed treasures from boxes that had lain unopened for years, discovering random goodies like picture frames, Post-Its and other minutiae.  That first weekend was spent cleaning the master bedroom I had never slept in and had been left dirty and dusty and the master bathroom, scrubbing discolored grout and wiping away what seemed like years of soap scum out of a shower I had never used.  On Monday, the locksmith changed the deadbolts and a week later, we had to meet at the MVC to clean up the title and registration on our cars.  We fought, but somehow got things taken care of, even though my hand shook as I wrote the check to pay for my half of the fees.  A quick stop at the gas station to switch the license plates later, it was the last time we saw each other.

Winter was bleak.  Some kind public workman carved deep gashes into the curbside lawn in front of my house and before anything could be done about it, a post-Christmas snowstorm blanketed everything in white.  And then another snowstorm.  And another.  December bled into January without my noticing.  One shitty year begat another like lighting one cigarette off the butt of another.  A misread gas meter resulted in a huge overcharge from the power company, mole hills got turned into mountains because what little ability I had to cope was continually being depleted by random emails from my ex-wife demanding this or insisting upon that. When the cable inexplicably died, the three days it took for someone to come out to repair it felt like forever because I just wanted to stare at a TV screen and embolize my mind. 

When I wasn’t going outside to push a shovel against what seemed like a never ending mountain of snow, the tape loop in my head was set to repeat, the song it played was “fairness” and the lyrics asked how it was that a woman who spent 90 percent of our marriage grossly overweight, highly intoxicated and emotionally abusive was walking away with an alimony check, a portion of my pension and my retirement funds.  My sister, similarly situated as the main breadwinner in her own failed marriage, told me to ask myself “how much would you pay to get out of jail.”  It was instructive but not entirely satisfying.  I accepted that in the karmic sense, I deserved some punishment.  I was not a model husband, I broke my vows, I checked out emotionally, I withheld affection and for all of that, I was certainly willing to pay my debt; however, I could not get past the idea that the sentence did not match the crime and further, that my wife’s own failures were not only going unpunished, but were being financially rewarded. 

Personal outlets offered little relief.  Dating was a cruel joke of incompatibility and stumbling starts, of overly monitoring my own words or carelessly oversharing intimate personal details that made women recoil.  Having not dated since before Bill Clinton was President, there was a Rip Van Winkle element to the experience – gone was the structured phone call/dinner/movie and in its place, a more erratic construct of text messages, emails and toneless communication.  A lunch over President’s Day weekend with a yogini devolved into a deep dive into my own navel and 20 minutes of advice from her about the benefits of “rebirthing” (don’t ask), a brunch in Philadelphia fell flat when I casually brought up my marital infidelity and a woman who had been part of the Seattle WTO protest in 1999 had hung up her anarchist flag and turned into a rather docile (and uninteresting) dinner companion. 

“Solitude makes us tougher toward ourselves and more tender toward others. In both ways, it improves one’s character.” - Nietzsche

And in all of this, there was no support system – no family nearby, and no close friends to commiserate with. A Christmas morning trip to the clothing donation bins felt surprisingly empty and even though I should be tithed by the women who check out romance novels from my public library after donating my ex-wife’s collection, clearing away all of that errata from the house did little to help me reach the closure I desired.  Even things that felt good, like giving away 30 rolls of wrapping paper for “Toys for Tots” at my gym were quickly forgotten.  As winter dragged on, my overriding memory of that time was being cold and being cold because I was being frugal because a check that should not be sent to a person who did not need it was taking money out of my bank account and not heating my home.  Anything I could not do I made into a daisy chain of connection back to the fact that my ex-wife was being unjustly enriched with money which, when we were married, was never good enough for her. 

The energy I expended just to keep afloat always threatened to run out.  While I had made back of the envelope estimates of what my living expenses would be while we mediated our divorce settlement, the reality of living on a meager wage after the mortgage, alimony, power, cable, phone and other bills had been paid was a different story.  It became embarrassing to beg off dates because I did not want to drive far away when gas was close to $4 a gallon or rationing Chinese food over multiple days to make my budget stretch a little farther.  Compounding this was the ever present (and literal) chill in the air.  Cold seemed to blanket my drafty home and I spent my off hours huddled under blankets and swaddled in fleece.  In all of this, I was hard on myself, hard on myself for staying so long, hard on myself for negotiating a shitty settlement (even though I had no leverage), and hard on myself for making mistakes and compounding those mistakes with bigger mistakes. 

But in that solitude, the slow budding of a future began to take root.  After the freefall of the first few months, I began to get my sea legs.  Once I saw that I could survive, albeit modestly, on my income, I realized I just needed to be smart with my money.  The snow ended in January, and although the cover it left did not fully melt well into February, by March, temperatures slowly crawled above freezing and a faint glimmer of normalcy started to creep into my life.  The divorce crept closer to completion with the finalization of the settlement agreement and the pesky emails abated.  And in that solitude, I began to see and feel a small but significant change in my own mind. 

“If it has anything to do with the guy at all, it’s something she didn’t notice in the profile originally (such as has kids, drinks too much, is a little too far away) or more likely, since the first email, she went on a date with a guy she met earlier and it went well so she’s focusing on him, or it went badly and she’s giving up for a while, or she was drunk when she wrote the first time and can’t think of anything cute to say now, or her brother is in trouble with his gambling debts again and she doesn’t have the energy to flirt right now, or her husband came home and she can’t get on the computer…”  L.L.

Ironically, the true pivot point for the transition from winter to spring came about from my failed dating experiences and an unexpected email from a member of my ex-wife’s family.  I met a woman entirely by coincidence one day and, after we met, asked her out.  We got to know each other over the phone and in random text messages, she was sweet if a bit awkward, probably less so than me, but after several months of flailing about, I felt legitimately hopeful that I had, at a minimum, found someone whose company I would enjoy (and vice versa).  Our first date was not great.  The familiarity and sharing that had defined our telephone calls were absent, the light hearted text messages did not seem to have come from the same person.  I was a little surprised at the lack of in person connection but had also been on enough first dates by then to be open to a second, and willing to credit the pre-date chemistry and explain away the in person awkwardness as first date jitters. 

When the inevitable denouement came (grounds: different points in life – example used: she did not like routine (but had a full-time job.) What?), I took it as a sign that I needed to step away from dating for a while.  The timing was perfect.  We had turned the calendar from March to April and instead of dissecting email responses (or lack thereof) it suddenly became liberating to *not* worry about whether or why I was not finding compatible dating partners.

“<Person> has a family, you’re not in it anymore, let <Person> ask them for help.” Other Older Sister

The other tipping point was more deeply personal.  A member of my ex-wife’s family contacted me in a desperate state and asked for my help.  I was inclined to give it but was unsure what the ramifications would be and whether it was my place to interject myself, so I called my sister.  Her advice was as simple as it was blunt (see above). It was the advice I needed to hear and I took it, with a caveat.  I did not think it was right to allow this person to twist in the wind but I could not call my ex-wife, the shitstorm it would have stirred was not something I wanted to deal with, so I called her sister, who I had always had cordial relations with.  I spoke with her husband; forwarded the email I had received and hoped to leave it at that, but the person who reached out to me called.  It was a painful conversation because I had to tell the person I could not (would not) help them and that they needed to get help from their own family.  I cried, the other person cried, there was a finality in the tone that felt like this was the last time I would speak with someone from my “former” family and in that too, was great sadness, because I was so fond of them.  That day was the emotional nadir of the year, there is not even a close second.

“It is going to be awful for a while, but then it won’t be anymore.” Carolyn Hax

In this emotional funk, I did what any primordial man would do – I grew a beard and headed into the cave.  I had been making a mental checklist for some time about the many home improvement projects I wanted to focus on and had blocked off a 10 day vacation (weekends included) to accomplish them.  Without the background noise of online dating or any real connections to people outside of work or my gym to distract me, focusing on getting those projects accomplished suddenly made my world feel much clearer and manageable.  I even snuck in a day trip to my hometown (3 hours away) for my nephew’s birthday party and felt good and happy about seeing my family.  Certainly, this was not the dead of winter anymore.

The timing turned out to be fortuitous.  The weather was perfect and the investment of time I made in planning my projects really paid off.  My home’s third bedroom, which had been used as a nursery by the former homeowners (complete with a cartoon motif on the wall), had been unused for more than four years by my ex-wife and me.  For less than $100 and two days of good hard work, the walls were painted and the room took on an entirely different look.  An extra desk and $30 chair from Target turned it into a mini-study. I chuckled to myself that what had sat unused for so long could have been changed with such little effort, but then again, I wanted to frame it as a more positive development of shedding the bad memories of what my house once was into something it could be.  Little by little over that week and a half, smaller things also changed.  Mats and throw rugs were switched out, shower curtains changed and furniture rearranged so that the house began to take on a different look and feel. 

The good weather also gave me a few days to spend on the outside of the house, firing up the lawnmower for the first time of the season and applying a good power wash to the home’s exterior to scrub off the winter’s grime.  The bare earth that had been exposed the day before Christmas and never patched was re-sodded and grass began to grown where I had stared at brown dirt.  More importantly, it just felt good to be active, to see the planning I had busied myself with come to fruition and to accomplish these tasks without say, pouring a bucket of paint on the carpet or leaving an enormous mark on the wall from moving furniture.  Over those 10 days I was reminded that no matter how difficult those first few months felt, no matter how angry I still felt, how wrong I thought the outcome of the settlement had been, I had my life back, something that could not be quantified by money.  It was a very instructive time, a time where winter’s hardship dissolved into spring’s glory and a time of great personal happiness because I was clearing away the remaining physical memories of my ex-wife’s presence in my home and truly making it my own. 

As spring turned into summer, I felt like I had turned a major corner.  Although there was one last spasm of electronic conflict with my ex-wife, the divorce became final in July, and because she had, by agreement, filed and I had not contested her complaint, we did not even have to go to court.  I received some stamped documents in the mail and that was that.  The first few months, where privation and uncertainty had combined to whittle my frame down to next to nothing began to fill itself out again, as salty snacks and sugary treats helped me pack back on the weight I had lost in the black hole of winter.  With warmer months came a more positive outlook, bills were less onerous and work, which had been my foundation through all of this, remained challenging and intellectually enriching. 

By the time a second and then third vacation were taken, more “to do” list items had been checked off – the master bedroom got its own fresh coat of paint (although not the new furniture set I had been hoping to buy), the frame around the front door and railing did too (something long overdue and visually appealing), a thick layer of insulation was applied in the attic and around the yard the fruits of my labor were rewarded with a brilliant display of plants in bloom, making after work lounging in the backyard visually appealing and peaceful.  I even dipped my toe back into the waters of the dating pool, and although the outcomes did not change much, the experience was less negative and I put far less pressure on myself to magically find someone who would make me whole. 

By fall, a new normal had set in and for that I was (and am) quite thankful.  Although natural disasters like Hurricane Irene (followed hot on its heels by a two day downpour that seemed to be more intense than the hurricane itself!) and a freak October snowstorm tested my mettle, they also did not seem like the end of the world; having survived that first winter when things looked so bleak, these experiences did not seem as daunting.  Outside of scheduled vacations, weekends turned to smaller projects that, little by little, continue to transform my home.  In my own life, I treated myself to a new computer and began blogging and more actively tweeting (@scarylawyerguy), which afforded me a creative outlet I had long desired but never made a priority. 

“Once you have some time on your own, you are going to meet someone who is just as twistedly perfect as you.  I will bet you a bottle of wine, that you will have a girlfriend on your 42nd birthday.” – The College Girlfriend

As I closed in on the year anniversary, I began to reflect back less and look forward more, and in that, the most important transformation is taking place.  While I cannot lie and say I never experience a twinge of anger or bitterness about my divorce, those times are few and far between.  For the first time in as long as I can remember, I have plans to make for my future and how I want to live it instead of just focusing on surviving today.  While I recognize that can change in an instant, I do not dwell on that fact.  I have to plan for the future and not worry about things that are out of my control. 

The last remaining parts of the post-divorce paperwork still need to be finalized (that sting I will feel 20 years from now is a slice of my pension being taken away), and there are still some of my ex-wife’s things at the house, though what was once a sprawling mess that (literally) covered the dining room and living room is down to a manageable 15 boxes segregated in the corner.  Even though dating is still hit or miss, I have learned a great deal about myself, about where I failed in my marriage and how I want to be a better person to the next person in my life.  At home, I am already mapping out what home improvements I want to make in 2012 (and 2013!), have a stack of great books to read and ideas and thoughts to put down on paper.  At work, I remain deeply appreciative for the job I have and the issues I get to focus on.  I think it is far too easy to become consumed in one’s own suffering and something I have come to value this year is the fact that, relatively speaking, I have it pretty good. 

"What you're counting on is your resiliency - that no matter how complicated life gets or how great a challenge you will face (turning 60 percent of your fundage over to your ex-wife), you will just bear down and beat the problem." - P.B.

But most importantly, my time and my life are now my own and no longer under anyone else’s control.  If I want to sleep in until 9 or do a load of laundry at the crack of dawn, there is no one there to tsk tsk me for doing so.  If I want to spend five hours writing a blog post or three hours at the gym, no one questions me for how I spend my time.  It might sound horribly selfish to be that zealous about one’s freedom to do as he or she pleases, and in that, there is a fair point to be made that maybe being married was not something I was happy being anyway, but as Barbara Kingslover observed: “A non-functioning marriage is a slow asphyxiation. It is waking up despised each morning, listening to the pulse of your own loneliness before the radio begins to blare its raucous gospel that you're nothing if you aren't loved." I was being asphyxiated both by an uncaring spouse who did not support my goals and aspirations and my own ambivalence about being married to her – not to the institution of marriage, but to *her*. 

If you have not lived that life, you cannot know the level of despair you feel when there appears to be no way out. It cripples you emotionally and deadens you to anything positive in life, to a future, to hopes and dreams and sucks into its vortex your will to live.  I realize now I could not have gone on living that life.  While winter was not uniformly awful or summer pristinely great, what has happened from then until now is a slow transition out of a deep and painful emotional chasm toward a brighter tomorrow.  Even now, a year later, there are good days and bad, but the vestiges of my old life continue to fall away and in their place is a future that is entirely mine to control. 

Monday, November 28, 2011

Gun Rights Are The New Abortion Rights

The rights enshrined in our Constitution are not absolute, a fact that might come as a surprise to the average American.  After all, we reflexively think of things like freedom of speech, assembly and the press as given in our society.  In truth, law students spend weeks learning about all the ways police officers can avoid securing a warrant before arresting you (something proscribed in the Fourth Amendment) and, more colloquially, that freedom of speech does not protect you from the consequences of yelling fire in a crowded theater.  Occupy Wall Street can protest in Zuccotti Park, but case law says that camping is, in the main, not expressive conduct protected by the First Amendment.  In short, no right is absolute, and entire careers are spent articulating and dissecting the ways that otherwise immutable protections can be curtailed under certain circumstances.  

Of course, constitutional law is fertile ground for the intersection of public policy and popular sentiment.  If you have recently purchased contraception at your local drug store or had a prescription filled for birth control, you can thank the Supreme Court for granting you that right.  Similarly, your Miranda rights, your child’s access to integrated school classrooms and proportionate electoral representation are all outgrowths of Supreme Court jurisprudence.  Depending on your point of view, holdings like these can be viewed in the extreme, either as clear cases of judicial activism or decisions that uphold our rule of law. 

In recent years, no case, with the possible exception of the Court's highly questionable opinion in Bush v. Gore, has generated more passion, controversy or subsequent litigation than Roe v. Wade[1].  At its most basic level, Roe recognized that women have a qualified right to terminate their pregnancies absent state restriction and that this right was grounded in a person’s right to privacy under the 14th Amendment to the Constitution. Although informally recognized as protecting a woman's right to abortion, the Roe opinion was actually more nuanced, holding only that women had an absolute right to an abortion without government intrusion in the first trimester of pregnancy, but that after that, two important triggers allowed for regulation of by the state: first, at the end of the first trimester, the Court found that a state’s interest in the health of the mother, becomes “compelling” and therefore may pass regulations “reasonably relate[d] to the preservation of maternal health[2].”  As examples, the Court cited things like the qualifications of people permitted to perform abortions, how those individuals are licensed, facilities where abortions can take place and how those facilities are licensed[3]; second, the Court held that a state’s important and legitimate interest in the life of the fetus becomes compelling at viability, at which time, the state could pass laws or regulations that restrict abortion entirely provided an exception “to preserve the life or health of the mother” was included[4].

Since the Roe ruling in 1973, some state legislatures, Congress and the Supreme Court itself have steadily chipped away at this decision, passing a host of legislation on everything from informed consent laws that require women be provided with medical information before undergoing an abortion and requiring minors to get parental consent before undergoing an abortion, to creating waiting periods before abortions can be performed[5] and restricting entirely the so-called "partial-birth" abortion[6].  The most recent restrictions are Targeted Restriction on Abortion Provider ("TRAP") laws that apply regulations typically limited to hospitals to abortion clinics as well, often mandating costly structural changes to the facilities even though clinics are already subject to safety regulations.  Sometimes these laws are struck down, sometimes they are not, and in this way, in the time between 1973 and 2011, access to abortion has become a hodgepodge of federal court rulings and state laws that make abortion either generally available or almost impossible, depending on the state you live in.  

Even though Roe was decided nearly four decades ago and anti-abortion advocates have steadily eroded and restricted this right[7], the passion of those who are focused on either maintaining Roe’s “core” viability (i.e., a woman’s right to an abortion during pre-fetal viability term of pregnancy absent an undue burden) or removing that last vestige of protection entirely, plays out at a level and intensity that few social issues of our day reach; however, one of those issues is the question of a person’s right to possess firearms and whether (or how) that right can be restricted. As will be discussed below, even though the Supreme Court has affirmed that there is an individual right to bear arms found within the Second Amendment, that right is itself modest and lower courts have already upheld a variety of restrictions and regulations that mirror the legal debate that has narrowed Roe’s impact over the years.

For many years, “Second Amendment” rights, that is, the question of whether the Constitution granted Americans a basic right to bear arms, was in question.  The Second Amendment itself is awkwardly written and in that way, was open to interpretation depending on which of the two clauses in the Amendment one chose to focus on[8].  While this debate raged for decades, it was put to rest, at least in part, by the Supreme Court in District of Columbia v. Heller[9].  In that case, the Supreme Court found that the Second Amendment protects “an individual right to keep and bear arms[10].” Case closed, right?  Here is where the gun rights debate dovetails with the abortion rights battle.  Like Roe, Heller merely established that a basic right existed, it did say that right was above restriction, something that typically gets lost in superficial discussion of any Constitutional right, but here, more than other areas, it is important to look at what Heller and cases that have interpreted it, allow, disallow and leave subject to judicial scrutiny as it relates to the rights of an American citizen to possess a firearm.

Heller involved a challenge to a law passed in the District of Columbia that prohibited the possession of all firearms in D.C. and required that any lawfully owned firearms be rendered inoperable[11].  The Court struck down the law as unconstitutionally infringing on the Second Amendment, which, the Court found, not only codified a pre-existing (i.e., pre-passage of the Constitution) individual right to keep and bear arms, but that this right tied to the need not only to maintain a militia but “also for self-defense and hunting[12].” Indeed, the Court noted that although “self-defense had little to do with the right’s codification[,] it was the central component of the right itself[13].” 

Although this portion of the Court’s holding is what the headlines reported, of equal interest is what the Court held as outside the Second Amendment and what could be regulated within it.  For example, the Second Amendment, the Court found, does not cover the possession of “weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns[14]” or the carrying of “dangerous and unusual weapons[15].” Further, the Court found that laws prohibiting carrying concealed weapons, possession of firearms by the mentally ill and felons and the carrying of firearms in “sensitive places” such as schools and government buildings, all fell outside the ambit of Second Amendment protection[16].  In other words, there are entire segments of the population who do not possess a right to bear arms (i.e., the mentally ill and felons), the right to bear arms is not implicated when a state passes a concealed weapon law and states can prohibit the possession of firearms in “sensitive places” without fear of having that law challenged on Second Amendment grounds. 

So much for prying a long rifle out of Charlton Heston’s cold dead hands.  Anyway, even when your gun possession (or ownership) is protected by the Second Amendment, your right is not absolute.  Then, a Court must look to a “means-end test[17]” to determine whether the law or regulation improperly infringes on that right.  In short, even the Supreme Court, who called gun ownership “among those fundamental rights necessary to our system of ordered liberty[18]” and, if you only read the headlines, would think upheld an unfettered right to own guns in America, said that is not the case.  In fact, as will be discussed more fully below, the level of scrutiny applied by courts in subsequent jurisprudence has upheld many of the regulations at issue before them.

Although Heller was decided less than four years ago, it has already spawned an impressive amount of litigation in the lower federal courts.  In this short time, the federal courts have solidified a basic two-part examination of any challenge to a law or regulation a litigant claims infringes on their Second Amendment rights.  Simply put, courts now ask first whether the law implicates the Second Amendment.  If it does not, the inquiry ends.  If it does, courts examine the “nature of the conduct being regulated and the degree to which the challenged law burdens that right[19].” 

As noted previously, wide swaths of gun control policy have already been found to be outside the ambit of Second Amendment jurisprudence.  These areas include prohibitions on gun ownership by felons and the mentally ill[20], the registration of handguns[21], “dangerous and unusual weapons” (i.e., short barreled shotguns[22], machine guns[23]) and the possession of firearms in “sensitive areas” (i.e., schools and government buildings).  Moreover, this is an area subject to extension because the Supreme Court itself noted that examples they cited were not exhaustive but rather, illustrative, of “longstanding” regulations that are presumptively valid[24]. 

This played out most recently in a new appeal brought by Dick Heller, the named litigant in the Supreme Court decision affirming an individual right to bear arms under the Second Amendment. Heller’s new lawsuit involves a challenge to legislation passed in D.C. in the wake of the Supreme Court’s ruling.  The D.C. Council’s new law requires gun owners to, among other things, register their firearms, provide certain personal information (e.g., name, address, and occupation), submit the pistol for ballistics identification, apply for the registration permit in person and, when requested, with the weapon present, register no more than 1 pistol in a 30 day period and renew the registration every 3 years[25].  In looking at the registration requirements, the court confirmed that basic registration requirements, including basic personal information, were not only long-standing[26], but were de minimus, “similar to other common registration or licensing schemes such as those for voting or driving a car[27] …” In this way, the D.C. Circuit Court of Appeals recognized another aspect of regulation that falls outside the Second Amendment – gun registration.  As other courts review laws that are challenged under the Second Amendment, it is entirely possible that similar examinations of the historical record will uncover longstanding regulations that will add to this list of actions that do not impact the individual right to bear arms[28].

On the other hand, and where gun rights will become the new abortion rights, is in this second category of laws, those that are not longstanding, but newer in vintage and do, in some way burden the rights of gun owners.  Here too, the courts are already building upon the foundation that the Supreme Court constructed in Heller.  For example, a federal law making it a crime to possess a firearm with an “obliterated” serial number was challenged in the Third Circuit[29].  In that case, the defendant, who was in possession of such a firearm, challenged the federal statute as an infringement on his Second Amendment right to bear arms.  The Court rejected this argument, first, questioning whether the Second Amendment right itself was implicated because the Court did not think a handgun with an obliterated serial number was covered as the type of weapon contemplated under the Supreme Court’s ruling in Heller but, in an abundance of caution assumed, arguendo, that the Second Amendment right was infringed and determined that the law in question did not improperly burden this right[30]. 

In reaching the constitutional question, the Court applied “intermediate scrutiny,” that is, that the governmental interest advanced must be “significant,” “substantial,” or “important” and the means of achieving that interest be “reasonable, not perfect[31]” as opposed to “strict scrutiny,” a level of analysis that requires the governmental interest to be “compelling” and the means of achieving it “narrowly tailored” to meet that objective[32].  The Court found that the government’s proffered interest in crime control and public safety were met by the legislation because (1) serial numbers help trace firearms for law enforcement purposes, (2) serial numbers assist law enforcement in tracing ownership of a recovered weapon and (3) people who own firearms with defaced serial numbers “almost always fall only on those intending to engage in illicit behavior.” When taken together, the Court found, the governmental interests were important and the means of achieving them more than reasonable such that the law did not unduly burden the individual’s Second Amendment rights[33].  Finally, the Court noted that the law left a person “free to possess any otherwise lawful firearm,” thereby reducing its infringement further[34].

The same application of intermediate scrutiny led the D.C. Circuit to find that the D.C. Council’s prohibition on semi-automatic assault weapons like the AR-15 and large capacity (more than 10 bullets) magazines also passed constitutional muster. Although D.C. attempted to argue that AR-15s were not even covered by the Second Amendment because the weapon is “dangerous and unusual,” regrettably, its ubiquity[35] rendered this argument moot.  That fact notwithstanding, the Court upheld the D.C. ban on assault weapons (including semi-automatic rifles) like the AR-15 and large capacity magazines under intermediate scrutiny.  The Court found compelling expert testimony provided to the D.C. Council who characterized semi-automatic rifles as creating “mass produced mayhem,” that the AR-15 was essentially the civilian version of the military’s M-16 assault rifle, and that assault weapons disproportionately account for mass murders and murders of police officers.  Prohibiting the possession of these weapons, the Court found, was an appropriate means to achieve the government’s objective of crime control and reducing gun violence[36].  As to large capacity magazines, the Court deferred to studies showing that the use of large capacity weapons result in more crimes where people are injured by gunfire, more shots fired and more wounds per victim than weapons without such magazines and that even in self-defense situations, a large magazine encourages a person to fire the full magazine, increasing the chances of innocent bystanders being hit or put in danger.  Here too, the Court found these reasons compelling and appropriate to help D.C. achieve its stated objective of crime control and public safety[37]. 

This is a key point because the strict scrutiny standard is often fatal and, based on the limited jurisprudence that has been create in the wake of Heller, is a direction federal Courts of Appeal are steering away from, not towards.  Indeed, it appears that strict scrutiny will only be applied where laws directly impact the limited gun ownership right upheld in Heller – “the right to possess firearms for defense of hearth and home” – the so-called “core” right recognized in that case[38]. Put another way, “a regulation that imposes a substantial burden upon the core right of self-defense protected by the Second Amendment must have a strong justification, whereas a regulation that imposes a less substantial burden should be proportionately easier to justify[39].”(emphasis added).

Of course, each federal circuit has different judicial make-up, but it is telling that in just the few short years since the Heller ruling, a diverse cross-section of courts have upheld a variety of gun control laws[40] or remanded for additional fact finding[41] without opining on the legitimacy of the law in question. As time goes on, gun rights, like abortion rights, will become more clearly (and narrowly) defined; instead of questions over waiting periods and parental consent or clinic regulations and doctor’s scripts, the challenges will be about things like ballistics fingerprinting, different types of ammunition, concealed weapons permits and other laws either already on the books or to be enacted in the future. If existing case law is any guide, courts will give great weight to expert testimony and crime statistics in showing the dangers that certain types of weapons (or ammunition) possess, permitting prohibitions against their possession so long as other firearms are available for purchase.  Further, reasonable regulations that bar individuals convicted of certain crimes have already been upheld as have registration requirements.  “Novel” forms of gun ownership regulation, that is, regulation that is not historical, but of more recent vintage, will be scrutinized closely, requiring all levels of government to provide a strong and defensible record showing why they are needed.  In the end, while possession of weapons in the home for self-defense and for hunting will be broadly protected, I expect that when all is said and done, the right to bear arms, which is portrayed (or thought to be) wide ranging, will turn out to be far more limited than its defenders would like it to be.   





[1]   410 U.S. 113 (1973).
[2]   Id. at 163.
[3]   Ibid.
[4]   Id. at 164.
[5]   See e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
[6]   Gonzales v. Carhart, 550 U.S. 124 (2007).
[7]    Four justices of the Supreme Court supported overturning Roe in the Casey decision; however, subsequent opinions of the court in this area indicate that the hollowing of Roe notwithstanding, the Court recognizes that overruling the case entirely may be a bridge too far, regardless of the justices’ views of its constitutional grounding.
[8]   The Second Amendment reads in full: “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.” U.S. Const. Amend. II.
[9]   554 U.S. 570 (2008).
[10]   Id. at 595.
[11]   See, U.S. v. Marzarrella, 614 F. 3d 85, 89 (3rd Cir. 2010) citing Heller. 
[12]   Heller, 554 U.S. at 592.
[13]   Heller v. U.S., 2011 U.S. App. LEXIS 20130, *13 (D.C. Cir. 2011).
[14]   Heller, 554 U.S. at 625, citing U.S. v. Miller, 307 U.S. 174 (1939).
[15]   Id. at 625.
[16]   Id. at 626-27.  See also, Marzzarella, 614 F. 3d at 91( … these longstanding limitations are exceptions to the right to bear arms.”)
[17]   There are three basic levels of scrutiny applied by courts – strict, intermediate and rational basis.  Of the three, only the first two are implicated in Second Amendment jurisprudence. Marzzarella, supra, 614 F. 3d at 89.
[18]   McDonald v. City of Chicago, 130 S. Ct. 3020, 3042 (2010).
[19]   Heller, 2011 U.S. App. LEXIS 20130, *30 citing U.S. v. Chester, 628 F. 3d 673, 682 (4th Cir. 2010).
[20]   Heller, 530 U.S. at 626-27.
[21]   Heller, 2011 U.S. Lexis 20130 at *23.
[22]   See, fn. 14 supra.
[23]   U.S. v. Fincher, 538 F. 3d 868, 873-74 (8th Cir. 2008), cert. denied, 129 S. Ct. 1369 (2009).
[24]   Heller, 530 U.S. at 626-27, see also Marzarrella, 614 F. 3d at 91.
[25]   Heller, 2011 U.S. App. LEXIS 20130 at *6.
[26]   The Court found that the earliest registration requirements dated to the early 1900s.  See, Heller, 2011 U.S. Lexis 20130 at *20-21.

[27]   Id. at *22.
[28]   It is worth noting that other restrictions, such as the ballistics requirement, training course, registration renewal and others were remanded for further fact-finding to the District Court because the Appeals Court could not, on the record before it, make a ruling on whether those restrictions passed intermediate scrutiny.  However, the sheer fact that the Court determined intermediate scrutiny would be the appropriate standard is itself important because it found that these “novel” regulations do not prevent “possession in [the] home or elsewhere, whether for self-defense or hunting, or any other lawful purpose.” Id. at *33.  See also, Chester, supra, 628 F. 3d at 680 (4th Cir. 2010)(remanding for additional fact-finding as to whether a federal law prohibiting a person with a domestic violence conviction from possessing a firearm infringes on Second Amendment rights).
[29]   Marzarrella, supra.  See also, 18 U.S.C. 922(k).
[30]   Marzarrella, 614 F. 3d at 94-97.
[31]   Id. at *98, citing Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 556 (2001).
[32]   Id. at *99.  It is worth noting that the Court, found, arguendo, that the law passed strict scrutiny as well.  See, Marzarrella, 614 F. 3d at 100-101.
[33]   Ibid.
[34]   Id. at *97.
[35]   The Court noted that 1.6 million AR-15s have been manufactured since 1986 and account for more than 5 percent of all firearm sales in America. Heller, 2011 U.S. App. LEXIS 20130 at *44.
[36]   Id. at *49-50.
[37]   Id. at *51.
[38]   Id. at 88.  See also, Heller 554 U.S. at 628,
[39]   Heller, 2011 U.S. App. LEXIS 20130 at *31 (internal citation omitted).
[40]   See, e.g., U.S. v. Reese, 627 F. 3d 792, 800-01 (10th Cir. 2010)(upholding federal law prohibiting gun possession by individual subject to a domestic protection order), U.S. v. Masciandaro, 638 F. 3d 458, 471 (4th Cir. 2011)(upholding Department of Interior regulation prohibiting the carrying or possession of a loaded firearm in a vehicle within federal parks), U.S. v. Smith, 742 F. Supp. 2d 853, 864-65 (S.D.W.V. 2011)(upholding federal law prohibiting gun possession by person convicted of misdemeanor charge of domestic violence), U.S. v. Kirkpatrick, 2011 U.S. Dist. LEXIS 82801, *10-11 (W.D.N.C. 2011)(upholding federal law prohibiting gun possession by individual convicted of crime punishable by more than 1 year in prison), U.S. v. Gonzales, 2011 U.S. Dist. LEXIS 127121, *21-27 (D. Utah 2011)(upholding ban on .22 caliber short-barreled rifle).
[41]    Certain remands are rightly viewed as sympathetic to the government’s position and inclined to affirm the law in question but in need of a more thorough record and explanation. See e.g., Chester, supra, Nordyke v. King, 644 F. 3d 776, 786 (9th Cir. 2011), (county regulation prohibiting gun possession on county property).