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
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
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.
[2] Id.
[3] Ibid.
[4] Id.
[5] See e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S.
[6] Gonzales v. Carhart, 550 U.S.
[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 U.S.
[9] 554 U.S.
[10] Id.
[11] See , U.S.
[12] Heller, 554 U.S.
[13] Heller v. U.S. U.S.
[14] Heller, 554 U.S. U.S.
[15] Id.
[16] Id.
[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 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.
[21] Heller, 2011 U.S.
[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.
[25] Heller, 2011 U.S.
[26] The Court found that the earliest registration requirements dated to the early 1900s. See, Heller, 2011 U.S.
[27] Id.
[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. Chester
[29] Marzarrella, supra. See also, 18 U.S.C. 922(k).
[30] Marzarrella, 614 F. 3d at 94-97.
[31] Id. U.S.
[32] Id.
[33] Ibid.
[34] Id.
[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 U.S.
[36] Id.
[37] Id.
[38] Id. U.S.
[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
Cool piece. I'm pro-gun, but doesn't mean I don't like there to be some nice, reasonable laws in place; and it is quite vexing to hear the fringe elements insist that there is some magic, unlimited right to own a small storage locker of RPGs or something...
ReplyDeleteI would, however, likes to have seen a bit of discussion on how the issue of Incorporation related to the 2nd Amendment. Because how I've understood it, the joke of the matter is that, while yes, there is an individual right to be clearly found in the 2nd Amendment ("right of the people"), it obviously only applied to the Federal Government, and the original intent was to protect state interests in maintaining some level of control over their militias (hence the prefatory clause's inclusion). Then "progressive, activist judges" start using the 14th Amendment to Incorporate the Bill of Rights, and our whole understanding of them start to shift, including, unintended or not the 2nd.