Saturday, February 6, 2016

Fourth Circuit Applies Strict Scrutiny to Maryland Assault Weapon Ban

Schwinn-steven
Steven D. Schwinn, John Marshall Law School

A sharply divided panel of the Fourth Circuit ruled this week that Maryland's assault-weapon ban is subject to the most stringent constitutional test, strict scrutiny. The ruling all but ensures that the ban will fall when the Second Amendment challenge, Kolbe v. Hogan, goes back to the district court on remand.

The ruling is a dramatic split from similar rulings in other circuits. The D.C. Circuit and the Second Circuit both applied intermediate scrutiny to similar bans; the Seventh Circuit applied its own test (distinct from a traditional tier of review), and the Supreme Court declined to review that ruling just this past December.

Given this trend, the Fourth Circuit's ruling is a little more than surprising. But the majority said that Maryland's flat ban on assault weapons and large-capacity magazines cut to the core of the Second Amendment (self-defense within the home) and left no room for possession of these kinds of weapons. That was enough to justify strict scrutiny, said the majority.

The dissent, in contrast, noted that Heller itself left room for this kind of regulation, and that sister circuits have applied a lower level of scrutiny.

The ruling is not final: the panel sent the case back to the district court for application of the strict scrutiny standard. Still, this all but guarantees that the courts will strike the ban, handing a significant victory to gun-rights advocates, dealing a blow to advocates of gun regulations, and throwing a wrench into the jurisprudence on assault-weapon bans in the circuits.

 

February 6, 2016 in Cases and Case Materials, News, Opinion Analysis, Second Amendment | Permalink | Comments (0)

Wednesday, January 6, 2016

More on President Obama's Gun EO and Separation of Powers

Amy Goodman hosted a debate between John Velleco, director of federal affairs for Gun Owners of America, and Caroline Fredrickson, president of the American Constitution Society, on the separation-of-powers issues in President Obama's executive actions to control gun violence:

 

January 6, 2016 in Executive Authority, News, Second Amendment, Separation of Powers | Permalink | Comments (0)

Tuesday, January 5, 2016

President Obama's Gun EO and Separation of Powers

President Obama's executive actions to control gun violence are drawing predictable Second Amendment howls. But there's another constitutional claim against President Obama's actions--that President Obama overreached and violated the separation of powers.

The emerging separation-of-powers claim focuses on the President's attempt to clarify statutory language, in particular, which gun sellers are "engaged in the business of dealing firearms" under federal law. Sellers so engaged have to get a federal license and conduct background checks on purchasers.

Firearms dealers certainly qualify; individuals selling guns don't. But that leaves a big grey area and allows many sellers to avoid federal licensing and background checks, even if they sell a lot of guns. President Obama's actions are designed to give some guidance to federal regulators and law enforcement on who is "engaged in the business of dealing firearms," so that more sellers who sell many guns (but have previously flown under the regulatory radar) have to get a license and conduct background checks. 

So: the President's action is either validly enforcing the law, or it's invalidly rewriting the law, in violation of the separation of powers.

Phillip Bump at WaPo has a nice, short summary of the positions.

Bob Adelmann, writing in the New American, says that the measure invalidly rewrites the law, and surveys the emerging arguments that support that position.

On the other side, law professors who urged President Obama to take action last month say that this measure is valid enforcement of federal law.

The law professors surely have the better argument. But the courts will soon have their own say.

January 5, 2016 in Executive Authority, News, Second Amendment, Separation of Powers | Permalink | Comments (0)

Monday, December 7, 2015

Court Declines to Hear, Strike Assault Weapon Ban

The Supreme Court today declined to hear an appeal upholding an assault-weapon ban against a Second Amendment challenge. The action, a denial of cert., means that Highland Park's ban on assault weapons stays on the books, even though the decision says nothing on the merits.

The case, Friedman v. City of Highland Park, involved a Second Amendment challenge to Highland Park's ban on semi-automatic firearms. The Seventh Circuit upheld the ban. That court, frustrated with the lack of guidance on the question, devised and applied this test:

[W]hether a regulation bans weapons that were common at the time of ratification or those that have "some reasonable relationship to the preservation or efficiency of a well regulated militia," and whether law-abiding citizens retain adequate means of self-defense.

The Seventh Circuit said that the ban didn't run afoul of this test, because assault weapons weren't common at the time of ratification; they had no reasonable relationship to the preservation or efficiency of a well regulated militia; and law-abiding citizens had other options for self-defense (handguns and long-guns). The court went on to say that regulation of assault weapons really ought to go "through the political process and scholarly debate" and not by judges "parsing ambiguous passages in the Supreme Court's opinions."

While the Supreme Court didn't see fit to intervene and reconsider this ruling, the Seventh Circuit's approach didn't sit well at all with Justices Thomas and Scalia. They dissented from the denial of cert., arguing that the Seventh Circuit's test "eviscerate[d] many of the protections recognized in Heller and McDonald." Justice Thomas dissected the Seventh Circuit's test and wrote that each part of it--commonality at the time of ratification, preservation of a militia, and self-defense alternatives--undermined Heller and McDonald. The upshot: "I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right."

Again, the Court's denial of cert. says nothing on the merits. But it leaves Highland Park's regulation and the Seventh Circuit's opinion both on the books. With just two justices dissenting, it looks like either (1) the Court's not yet ready to revisit the Second Amendment, or (2) it's content with the Seventh Circuit's approach.

December 7, 2015 in Cases and Case Materials, News, Second Amendment | Permalink | Comments (0)

Monday, October 19, 2015

Second Circuit Upholds Bulk of Gun Restrictions Against Second Amendment Challenges

In its extensive opinion in the consolidated cases of  New York State Rifle and Pistol Ass'n v. Cuomo and  The Connecticut Citizens' Defense League v. Malloy, a panel of Second Circuit substantially upheld gun restrictions passed by New York and Connecticut subsequent to the December 2012 "mass murders at Sandy Hook Elementary School in Newtown, Connecticut." The court largely affirmed the district judge's opinion finding the bulk of New York's SAFE Act constitutional.

The central challenge was a Second Amendment one and the court applied the two-step inquiry that is becoming accepted throughout the circuits.

The first question is whether the government restriction burdens conduct protected by the Second Amendment: the Second Amendment protects only “the sorts of weapons” that are (1) “in common use” and (2) “typically possessed by law‐abiding citizens for lawful purposes.”

If so, the court then moves to the second inquiry, determining initially the "level of scrutiny" to be applied by considering two factors: (1) “how close the law comes to the core of the Second Amendment right” and (2) “the severity of the law’s burden on the right.”  After determining the level of scrutiny - - - here, intermediate scrutiny - - - the court then applies the standard asking "whether the statutes at issue are 'substantially related to the achievement of an important governmental interest.'"
 
Affirming the respective district judges, the Second Circuit upheld the constitutionality of state prohibitions on semiautomatic assault weapons and large‐capacity magazines.  The Second Circuit held that Connecticut's specific prohibition on the non‐ semiautomatic Remington 7615 and New York's "seven‐round load limit" violated the Second Amendment.
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Manet, Mister Pertuiset, The Lion Hunter, 1881 via
 
The court also considered several due process vagueness challenges to specific provisions in the laws, reversing the conclusion of the New York federal district judge that certain provisions - - - pertaining to “versions” and “muzzle breaks”- - - were unconstitutionally vague.
 
The Second Circuit's opinion is closely reasoned and well within what is becoming the standard within all the circuits.  Although the opinion several times mentions the absence of clear United States Supreme Court precedent - - - reminding that neither District of Columbia v. Heller (2008) nor McDonald v. City of Chicago (2010) "delineated the precise scope of the Second Amendment or the standards by which lower courts should assess the constitutionality of firearms restrictions" - - - this should not be a case that the Second Circuit would be moved to reconsider or that the Supreme Court would find worthy of review - - - unless a ban on the possession of automatic assault weapons should be subject to strict scrutiny under the Second Amendment.
 

October 19, 2015 in Due Process (Substantive), Opinion Analysis, Second Amendment | Permalink | Comments (1)

Monday, September 21, 2015

D.C. Circuit Upholds Part, and Strikes Part, of Long Gun Registration Law

A divided panel of the D.C. Circuit today upheld portions of the D.C. long-gun registration law, even as the court struck other portions. The mixed ruling has a little for both sides in the debate over gun rights.

This case follows previous rulings in which the court upheld handgun registration requirements and a ban on assault weapons and magazines with a capacity in excess of 10 rounds.

The court applied its familiar two-part framework, asking first whether a provision impinges on a right protected by the Second Amendment, and, if so, second whether the provision satisfies intermediate scrutiny. Here are the results:

Basic Registration: Upheld. The court said that a basic registration requirement for long-guns did not impinge on Second Amendment rights, and therefore didn't even trigger intermediate scrutiny. The court followed its own ruling on registration of handguns, saying that the only difference between the two is the "historical pedigree" of registration requirements for handguns (which registration for long-guns lacks).

The court held that all other requirements, below, did infringe on Second Amendment rights, and therefore applied intermediate scrutiny (with different results):

In-Person Registration, Fingerprinting, and Photographing: Upheld. The court held that an in-person registration requirement, a fingerprinting requirement, and a photograph requirement for an application for a long-gun license were all sufficiently tailored to meet D.C.'s interest in public safety. The court said that these requirements would "help to deter and detect fraud and thereby prevent disqualified individuals from registering firearms" and (as to the photograph requirement) "facilitat[e] identification of the owner of a registered firearm during any subsequent encounter with the police." "The additional requirement that registrants appear in person to be photographed and fingerprinted is but a corollary necessary to implement those requirements."

Bringing the Firearm to Registration: Struck. The court said that the requirement that an applicant bring the firearm to registration was not tailored to promote public safety. "On the contrary, common sense suggests that bringing firearms to the MPD would more likely be a threat to public safety . . . ."

Re-registration Every 3 Years: Struck. The court held that D.C.'s requirement to re-register every three years was not sufficiently tailored to promote public safety, because officials can already conduct background checks on permit holders (without re-registration), the regular registration process should take care of firearms transfers, and D.C. law already requires owners to report lost weapons (obviating the need to use the re-registration process to locate lost or stolen weapons).

Registration Fees: Upheld. The court upheld reasonable registration fees, $13 per firearm and $35 for fingerprinting.

Education Requirements: Upheld and Struck. The court upheld training requirements going to the safe use of firearms, but it struck a testing requirement on D.C. gun laws as not sufficiently tailored to promote public safety.

One Pistol Per Month Rule: Struck. The court struck this limit, because D.C.'s evidence failed to show that it would promote public safety. Moreover, "taken to its logical conclusion, that reasoning [limiting registrations in order to limit firearms present in the home, in order to promote public safety] would justify a total ban on firearms kept in the home."

Judge LeCraft Henderson wrote separate and would have upheld all the requirements under intermediate scrutiny.

 

September 21, 2015 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis, Second Amendment | Permalink | Comments (0)

Wednesday, August 19, 2015

Missouri Court Upholds Ban on Felon Gun Possession

The Missouri Supreme Court ruled this week that the state's ban on felon gun possession did not violate the state constitutional right to bear arms. The ruling is notable, because it applied strict scrutiny, but nevertheless upheld the gun possession restriction.

The Missouri Constitution, article I, section 23, read as follows (at the time of the defendant's conviction for possessing a gun in violation of the state's ban on felon possession):

That the right of every citizen to keep and bear arms in defense of his home, person, and property, or when lawfully summoned in aid of the civil power, shall not be questions; but this shall not justify the wearing of concealed weapons.

But the provision was amended during the appeal. The amended provision added "ammunition, and accessories typical to the normal functioning of such arms" to the right to keep and bear arms; it added "family" to the list of things that a citizen can bear arms to protect; it struck the limitation on concealed carry; and it added language strengthening the right (explicitly subjecting it to strict scrutiny), but permitting restrictions on felons and individuals adjudicated by a court to be a danger to self or others because of a "mental disorder or mental infirmity."

Still, the court said that the previous provision applied, because the defendant was convicted before the amendment took force.

The court held that under article I, section 23, strict scrutiny applied to restrictions on gun possession. But the state's ban on felon possession satisfied even that highest level of constitutional review:

The State has a compelling interest in ensuring public safety and reducing firearm-related crime. Prohibiting felons from possessing firearms is narrowly tailored to that interest because "[i]t is well-established that felons are more likely to commit crimes than are other law abiding citizens."

The ruling means that there are possession restrictions that satisfy strict scrutiny under Missouri state con law--at least the old Missouri state con law. It's not clear how far this might extend, however, given that the new version of article I, section 23, goes to lengths to specify that strict scrutiny applies to possession restrictions and lists just two specific exceptions.

August 19, 2015 in Cases and Case Materials, Comparative Constitutionalism, News, Opinion Analysis, Second Amendment, State Constitutional Law | Permalink | Comments (0)

Monday, April 27, 2015

Plaintiffs Shoot a Blank in Assault Weapon Ban Challenge

A divided panel of the Seventh Circuit today upheld a local ordinance banning assault weapons and large-capacity magazines against a Second Amendment challenge. The ruling in Friedman v. City of Highland Park means that the ordinance, by Highland Park, a Chicago suburb, stays in place for now. But this case is a good candidate for en banc and even Supreme Court review, so we likely haven't seen the end of it.

The case is full of turns. For example, Judge Easterbrook, for the majority, used history against the plaintiffs, even though opponents of gun regulation have so often used history in support of their points. He also used federalism against the plaintiffs, even though opponents of gun regulation so often look to "states' rights" in this and other areas. He turned the preservation or efficiency of a well regulated militia into a point about the states' ability to decide what weapons should be available to civilians. And finally he turned the gun-rights victories at the Supreme Court against the plaintiffs: If the plaintiffs can already possess handguns and long-guns for self-defense (as the Court has ruled, why do they also need semi-automatic weapons?

The case is also full of both social science and common sense. For example, "That laws similar to Highland Park's reduce the share of gun crimes involving assault weapons is established by the data." And, "But assault weapons with large-capacity magazines can fire more shots, faster, and thus can be more dangerous in the aggregate. Why else are they the weapons of choice in mass shootings?"

But aside from the turns, the social science, and the common sense, the case is notable for the Second Amendment rule it uses. Judge Easterbrook declined to apply any particular tier of scrutiny and instead applied this test:

[W]hether a regulation bans weapons that were common at the time of ratification or those that have "some reasonable relationship to the preservation or efficiency of a well regulated militia," and whether law-abiding citizens retain adequate means of self-defense.

Judge Easterbrook essentially said that this is the best a lower court can do when the Supreme Court has declined to set a particular level of scrutiny (or other test).

As to the requirement of a reasonable relationship to the preservation or efficiency of a well regulated militia, the court said that "states, which are in charge of militias, should be allowed to decide when civilians can possess military-grade firearms, so as to have them available when the militia is called to duty." As to whether the law allows other means of self-defense, the court noted that Highland Park residents can still use handguns and long-guns for self-defense, and that the Court said that was enough.

He even at one point went so far as to say that if Highland Park's ban only "reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that's a substantial benefit."

In wrapping up, Judge Easterbrook went even more deferential:

The best way to evaluate the relation among assault weapons, crime, and self-defense is through the political process and scholarly debate, not by parsing ambiguous passages in the Supreme Court's opinions. The central role of representative democracy is no less part of the Constitution than is the Second Amendment: when there is no definitive constitutional rule, matters are left to the legislative process.

And he went more on federalism:

Another constitutional principle is relevant: the Constitution establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in a search for national uniformity. McDonald circumscribes the scope of permissible experimentation by state and local governments, but it does not foreclose all possibility of experimentation. Within the limits established by the Justices in Heller and McDonald, federalism and diversity still have a claim. Whether those limits should be extended is in the end a question for the Justices.

Judge Manion dissented, arguing that the "ordinance infringes upon the rights of . . . citizens to keep weapons in their homes for the purpose of defending themselves, their families, and their property."

April 27, 2015 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Thursday, March 26, 2015

Ninth Circuit to Reconsider "Good Cause" Requirement for Concealed Carry

The Ninth Circuit announced today that it would reconsider a three-judge panel's ruling striking San Diego's requirement that a person show "good cause" before obtaining a concealed carry permit. ("Good cause" means something beyond the ordinary concern for safety.)

Recall that a divided three-judge panel ruled last year in Peruta v. County of San Diego that the "good cause" requirement violated the Second Amendment. The court said that the requirement wasn't a mere regulation of the right to bear arms; instead, the requirement destroyed the core of that right. As a result, the court declined to specify a level of scrutiny and simply struck the requirement.

The ruling aligned with the Seventh Circuit, but contrasted with rulings in the Second, Third, and Fourth circuits upholding similar requirements.

Today's announcement suggests that the full Ninth Circuit may reverse the earlier panel ruling and align itself with those courts that have upheld "good cause" and similar requirements.

March 26, 2015 in Cases and Case Materials, Fundamental Rights, News, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 4, 2015

Ninth Circuit Upholds Constitutionality of Ammunition Regulation

In its opinion in Fyock v. City of Sunnyvale, the Ninth Circuit upheld the constitutionality of a voter initiative, Measure C, prohibiting possession of "a large-capacity magazine," whether  "assembled or disassembled" and as defined as "any detachable ammunition feeding device with the capacity to accept more than ten (10) rounds."   The panel affirmed the district judge's denial of a motion for preliminary injunction agreeing that the plaintiff did not demonstrate a likelihood of prevailing on the merits.

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image via

Judge Michael Daly Hawkins, writing for the unanimous panel, employed a series of tests to conclude that the restriction survived the Second Amendment.  He articulated the now-common  overarching Second Amendment two-prong test, first asking  "whether the challenged law burdens conduct protected by the Second Amendment”; and second, if so, what level of scrutiny should be applied.  The Ninth Circuit agreed with the district judge that on the record before it, the large capacity magazine restriction burdened conduct within the ambit of the Second Amendment. 

As to the level of scrutiny, the panel relied on Ninth Circuit precedent stating that "to determine the appropriate level of scrutiny, the court must consider (1) how closely the law comes to the core of the Second Amendment right; and (2) how severely, if at all, the law burdens that right." Here, the court found that while the magazine restriction "likely reaches the core Second Amendment right" given that it prohibits such magazines in the home, "its resulting impact" on the core right of self defense in the home is not severe.  Thus, intermediate scrutiny was appropriate.

Finally, the court noted that in the context of Second Amendment challenges, intermediate scrutiny requires: “(1) the government’s stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and the asserted objective.”  The court found that Sunnyvale's stated interests - - -to promote public safety by reducing the harm of intentional and accidental gun use; to reduce violent crime and reduce the danger of gun violence, particularly in the context of mass shootings and crimes against law enforcement - - - were undoubtedly substantial and important.  It also stated that there was a reasonable fit: Sunnyvale “submitted pages of credible evidence, from study data to expert testimony to the opinions of Sunnyvale public officials."  The court held that Sunnyvale was entitled to rely on such evidence and that the district judge was not required to find that the ordinance is the least restrictive means of achieving Sunnyvale’s interest.

The opinion is a concise and excellent example of the general state of Second Amendment analysis after District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), especially relevant given increasing efforts to ban large capacity magazines.  

March 4, 2015 in Opinion Analysis, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Thursday, December 18, 2014

Sixth Circuit Strikes Ban on Gun Possession by Persons Formerly Committed to Mental Institution

The Sixth Circuit ruled today in Tyler v. Hillsdale County Sheriff's Department that the federal ban on gun possession by a person "who has been committed to a mental institution" violates the Second Amendment.

The ruling is the first to address this particular provision, and it's the first to strike a federal ban on a particular category of would-be gun owners. The ruling's notable, too, because it applies strict scrutiny, even as both parties agreed that intermediate scrutiny applied.

The court, using its two-step approach to Second Amendment questions, held first that the federal ban on a person "who has been committed to a mental institution," 18 U.S.C. Sec. 922(g)(4), "falls within the scope of the Second Amendment right, as historically understood." That is: while the Second Amendment historically did not protect the right to bear arms by the mentally ill, "[w]e are not aware of any other historical source that suggests that the right to possess a gun was denied to persons who had ever been committed to a mental institution, regardless of time, circumstance, or present condition." (Emphasis added.)

The court next applied strict scrutiny and held that while the government's interest was "compelling," the flat ban was not narrowly tailored to meet it. In particular, the court said that the federal government failed to fund an opt-out provision for Section 922, leaving a formerly institutionalized person without a federal opportunity to show that he or she no longer poses a danger and should no longer be covered by Section 922(g)(4). Moreover, the federal conditioned grant program--which would allow an individual to prove to his or her state the he or she is no longer dangerous and should no longer be covered by Section 922(g)(4), so long as the state participates in the federal program (about half do)--leaves a person's fundamental right to bear arms up to his or her state. That's no good. The court:

Under this scheme, whether [a person] may exercise his right to bear arms depends on whether his state of residence has chosen to accept the carrot of federal grant money and has implemented a relief program. His right thus would turn on whether his state has taken Congress's inducement to cooperate with federal authorities in order to avoid losing anti-crime funding. An individual's ability to exercise a "fundamental righ[t] necessary to our system of ordered liberty" cannot turn on such a distinction. Thus, Section 922(g)(4) lacks narrow tailoring as the law is applied to [the petitioner].

The court struck the provision even as it recognized that no other court has struck any other ban on guns for any other category of person under Section 922(g)(4). In particular, the court recognized that no court has struck a ban on guns for undocumental aliens, domestic-violence misdemeanants, persons under a certain age, persons subject to certain domestic-protection orders, and persons who are "an unlawful user of or addicted to any controlled substance." The court distinguished the committed-to-a-mental-institution category, however, because "its prohibition is permanent; it applies potentially to non-violent individuals; it applies potentially to law-abiding individuals; and it punishes potentially non-violent conduct."

The court surveyed the approaches to the Second Amendment in the other circuits--mostly some form of intermediate scrutiny--but applied strict scrutiny. This was surprising and unnecessary, given that both parties agreed that intermediate scrutiny applied, and, as the concurrence argued, the petitioner would have won under intermediate scrutiny, too.

According to the court's analysis, Congress could avoid the result simply by funding the federal opt-out program and giving previously institutionalized individuals an opportunity to show that they are no longer dangerous and should no longer be subject to the ban in Section 922(g)(4).

December 18, 2014 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis, Second Amendment | Permalink | Comments (1) | TrackBack (0)

Thursday, July 3, 2014

Louisiana Supremes Uphold Ban on Firearms for Ex-Felons

The Louisiana Supreme Court this week upheld the state's prohibition on the possession of firearms by convicted felons against a challenge that the law violated the state's gun-rights amendment.  The court described the prohibition as "effective, time-tested, and easily understandable," and said that "[c]ommon sense and the public safety allow no other result."

Lousisiana's gun-rights amendment is notable because it explicitly sets strict scrutiny as the standard for laws infringing on the right to keep and bear arms:

The right of each citizen to keep and bear arms is fundamental and shall not be infringed.  Any restriction on this right shall be subject to strict scrutiny.

Article I, Section 11.  Louisiana voters enacted the amendment to ensure that laws regulating guns are subject to the strictest standard of review (and not some lower standard that the courts might have used under the Second Amendment and Heller.)  The previous version of the state constitution read, "The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person." 

The court, with little analysis, concluded that Louisiana's law banning the possession of guns by convicted felons for a period of 10 years after their release met strict scrutiny.  The court said that the state had a compelling interest in public safety, and that this ban was easily narrowly tailored to meet that interest (again, with little serious analysis).  The court also looked to legislative history of the amendment that suggested that the amendment wouldn't affect gun laws already on the books at the time of the amendment.

The court's cursory analysis (under strict scrutiny, no less) says that certain gun restrictions get a free pass, and that provisions like Louisiana's amendment are strong on paper but but weaker in application.  It also suggests that the amendment, with its strict scrutiny test, bit off more than it can chew.

July 3, 2014 in Cases and Case Materials, Comparative Constitutionalism, Fundamental Rights, News, Second Amendment, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 20, 2014

Waldman's Biography of the Second Amendment

Michael Waldman, writing over at Politico, tells the story of how the NRA rewrote the Second Amendment, not through the Article V process, but through persistent and carefully calculated political action and legal argument. Over time, the NRA's position worked its way into the consciousness of politicians and judges and lawyers and ordinary people, until Heller seemed to many (and obviously most on the Court) like an inevitability.  That process--and not raw legal argument, not some new and significant historical find, and certainly not a constitutional amendment--is how we got the individual right to keep and carry guns, according to Waldman.

Waldman, the president of the Brennan Center for Justice at NYU, writes on the occasion of the release of his latest book, The Second Amendment: A Biography.

Waldman's piece in Politico is as much about the political process of constitutional change as it is about the Second Amendment.  In that way, it's a how-to for anyone interested in influencing the direction of constitutional law outside the amendment process, and a healthy reminder that a well organized movement can still influence the direction of American constitutional law:

So how does legal change happen in America?  We've seen some remarkably successful drives in recent years--think of the push for marriage equality, or to undo campaign finance laws.  Law students might be taught that the court is moved by powerhouse legal arguments or subtle shifts in doctrine.  The National Rifle Association's long crusade to bring its interpretation of the Constitution into the mainstream teaches a different lesson: Constitutional change is the product of public argument and political maneuvering.  The pro-gun movement may have started with scholarship, but then it targeted public opinion and shifted the organs of government.  By the time the issue reached the Supreme Court, the desired new doctrine fell like a ripe apple from a tree.

May 20, 2014 in Fundamental Rights, Interpretation, News, Scholarship, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 26, 2014

Ninth Circuit Upholds San Francisco's Gun Regulations

Affirming the federal district judge, a panel of the Ninth Circuit in its opinion in Jackson v. City of San Francisco found that San Francisco's gun regulations likely survived the Second Amendment challenges and therefore the denial of the preliminary injunction was proper.

At issue were two San Francisco gun-related regulations: one that requires handguns to be stored in a locked container at home or disabled with a trigger lock when not carried on the person and the other that prohibits the sale of hollow-point ammunition within San Francisco.

Handgun-231696_640The panel, as other courts have done, derived its framework from District of Columbia v. Heller, first asking whether the challenged regulations burden conduct protected by the Second Amendment and then applying the "appropriate" level of scrutiny.  Because Heller (and McDonald v.Chicago which incorporated the Second Amendment against the states) left open this second inquiry, the panel - - - again following other circuits - - -then analyzed  ‘how close the law comes to the core of the Second Amendment right’ and ‘the severity of the law’s burden on the right.’   The panel analogized to First Amendment principles and noted that "firearm regulations which leave open alternative channels for self-defense are less likely to place a severe burden on the Second Amendment right than those which do not." The panel applied intermediate scrutiny to the regulations.

The opinion distinguished the San Francisco gun regulation requiring safety measures from those seemingly similar District of Columbia safety measures the United States Supreme Court found unconstitutional in Heller:

Section 4512 does not impose the sort of severe burden imposed by the handgun ban at issue in Heller that rendered it unconstitutional. Unlike the challenged regulation in Heller, section 4512 does not substantially prevent law-abiding citizens from using firearms to defend themselves in the home. Rather, section 4512 regulates how San Franciscans must store their handguns when not carrying them on their persons. This indirectly burdens the ability to use a handgun, because it requires retrieving a weapon from a locked safe or removing a trigger lock. But because it burdens only the “manner in which persons may exercise their Second Amendment rights,” the regulation more closely resembles a content-neutral speech restriction that regulates only the time, place, or manner of speech. The record indicates that a modern gun safe may be opened quickly. Thus, even when a handgun is secured, it may be readily accessed in case of an emergency. Further, section 4512 leaves open alternative channels for self-defense in the home, because San Franciscans are not required to secure their handguns while carrying them on their person. Provided San Franciscans comply with the storage requirements, they are free to use handguns to defend their home while carrying them on their person.

[citations omitted]

As to the sale of hollow point bullets, the panel found that there was standing to challenge the restriction and that such ammunition was protected by the Second Amendment.  But it again applied intermediate scrutiny and found the regulation survived.  It reasoned that the city's regulation "imposed only modest burdens on the Second Amendment right" given "the availability of alternative means for procuring hollow-point ammunition." 

The opinion is firmly rooted in current doctrine, even as that doctrine is in disarray.  Earlier this month the Delaware Supreme Court held a gun restriction in public housing unconstitutional; earlier this year a district judge in Chicago held that city's gun regulations unconstitutional.   The United States Supreme Court this Term has denied certiorari to several petitions seeking review of lower court cases including Fifth Circuit cases upholding a ban of sales of guns to those under 21.

Borrowing from First Amendment doctrine seems especially problematic in these cases, but understandable given the infantile state of the doctrine.

 [image via]

 

March 26, 2014 in First Amendment, Opinion Analysis, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Saturday, March 22, 2014

Delaware Supreme Court Interprets State Constitutional "Second Amendment" Provision to Protect the Right to Firearms in Public Housing Common Areas

Responding to a certified question from the Third Circuit, the Delaware Supreme Court interpreted its state constitutional "right to bear arms" provision expansively in its opinion in Doe v. Wilmington Housing Authority.

At issue were two policies of the housing authority.  The first, the Common Area Provision,  prohibited "residents, household members, and guests from displaying or carrying a firearm or other weapon in a common area, except when the firearm or other weapon is being transported to or from a resident’s housing unit or is being used in self-defense."  The second, the Reasonable Cause Provision,  required "residents, household members, and guests to have available for inspection a copy of any permit, license, or other documentation required by state, local, or federal law for the ownership, possession, or transportation of any firearm or other weapon" if there was reasonable cause to believe there was a violation.

800px-Rifle_in_poznanThe court interpreted Article I §20 of the Delaware Constitution as inconsistent with the housing authority policies.  The constitutional provision provides: “A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.” As the court noted, this was not adopted as part of the state constitution until 1987, given concerns of the original state constitutional framers because of concerns "over groups of armed men," but nevertheless "Delaware has a long history, dating back to the Revolution, of allowing responsible citizens to lawfully carry and use firearms in our state."

Importantly, the Delaware Supreme Court clearly stated that it was interpreting Article I §20 as an independent ground and did not base its opinion on the Second Amendment.  It considered its four previous cases, noting that only in one did it cite Second Amendment cases.  Interestingly, however, in three of the four cases, the court rejected the Article I §20 claim, and in one it remanded the case on the basis of the jury instructions in the criminal trial. 

Here, however, the court found that the "common areas" in public housing deserved special consideration.  Applying the "intermediate scrutiny" standard developed in its precedent, the court reasoned that even "active and retired police officers who are residents, household members, or guests are disarmed by the Common Area Provision," and that an "individual’s need for defense of self, family, and home in an apartment building is the same whether the property is owned privately or by the government."  Thus, the court concluded that

the Common Area Provision severely burdens the right by functionally disallowing armed self-defense in areas that Residents, their families, and guests may occupy as part of their living space.

As to the Reasonable Cause Provision, the court found that it was not severable from the Common Areas provision, and was therefore also unconstitutional.

The Delaware Supreme Court's unanimous opinion clearly articulates the adequate and independent state grounds of Article I §20of the state constitution, but less clearly articulates and supports its reasoning for interpreting the state constitutional provision to invalidate the public housing prohibitions of firearms. 

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March 22, 2014 in Federalism, Opinion Analysis, Second Amendment, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Sunday, February 16, 2014

Ninth Circuit Strikes "Good Cause" Requirement for Concealed Carry

A divided three-judge panel of the Ninth Circuit ruled last week in Peruta v. County of San Diego that the city's "good cause" requirement for a concealed carry permit, enacted under California's general ban on concealed carry, violated the Second Amendment.

The ruling deepens a split in the circuits on concealed carry.  As the court wrote, "Indeed, we are the fifth circuit court to opine expressly on the issue, joining an existent circuit split. . . .  Our reading of the Second Amendment is akin to the Seventh Circuit's interpretation in Moore . . . and at odds with the aproach of the Second, Third, and Fourth Circuits . . . ."

The case involves California's and San Diego's concealed carry permitting requirements.  California law generally bans concealed carry, but allows a person to apply for a concealed carry permit where he or she lives, provided that the person shows "good moral character," completes a training course, and establishes "good cause."  San Diego enacted a policy that defines "good cause" as "a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm's way."  Concern for "one's personal safety alone is not considered good cause."

The court surveyed the history and concluded that "the carrying of an operable handgun outside the home for the lawful purpose of self-defense, though subject to traditional restrictions, constitutes 'bear[ing] Arms' within the meaning of the Second Amendment."

As to the "good cause" requirement: the court ruled that California's scheme--which bans open carry, and restricts concealed carry to all but those who can show a particularized "good cause"--amounts to a destruction of the core right to bear arms for self-defense (as opposed to a mere burden on the right).  The court thus struck the permitting scheme, without specifying a level of scrutiny.  "Heller teaches that a near-total prohibition on keeping arms (Heller) is hardly better than a near-total prohibition on bearing them (this case), and vice versa.  Both go too far."  Op. at 57.

Judge Thomas dissented, arguing that the majority "not only strikes down San Diego County's concealed carry policy, but upends the entire California firearm regulatory scheme."

February 16, 2014 in Cases and Case Materials, Fundamental Rights, News, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 7, 2014

District Judge Says Chicago's Gun-Sales Ban Violates Second Amendment

Judge Edmond E. Chang (N.D. Ill.) ruled yesterday in Illinois Association of Firearms Retailers v. City of Chicago that Chicago's ban on gun sales violates the Second Amendment. 

Chicago Municipal Code Section 8-20-100 says, in relevant part, that "no firearm may be sold, acquired or otherwise transferred wtihin the city, except through inheritance of the firearm."  Firearms dealers and would-be gun buyers sued, arguing that it violated the Second Amendment.  Judge Chang agreed, granting summary judgment in their favor.

The court used the two-step process sanctioned by the Seventh Circuit: first, the court determined whether the ban fell within the Second Amendment as it was understood in 1791 (when the Bill of Rights was ratified) or in 1868 (when the Fourteenth Amendment was ratified); second, the court determined whether the ban satisfies a varying, but heightened, level of scrutiny.

As to step one, the court concluded that "[t]he City's proffered historical evidence fails to establish that governments banned gun sales and transfers at the time of the Second Amendment's enactment," and therefore the Second Amendment applies.  As to step two, the court applied "not quite strict scrutiny" (because the ban "prevents Chicagoans from fulfilling, within the limits of Chicago, the most fundamental prerequisite of legal gun ownership--that of simple acquisition") and that the ban didn't sufficiently serve the city's interests in reducing criminals' access to guns, restricting gun acquisition in the illegal market, or eliminating dangerous gun stores from Chicago.

Judge Chang gave the city "limited time, before the judgment becomes effective, to consider and enact other sales-and-transfer restrictions short of a complete ban," and invited the city to move for a stay pending appeal.

January 7, 2014 in Cases and Case Materials, Fundamental Rights, News, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Thursday, January 2, 2014

Federal District Judge Upholds Most of New York's SAFE Act Against Second Amendment Challenge, Striking Some Provisions

In an opinion rendered on December 31, Judge William M. Skretny declared several provisions unconstitutional but upheld most of New York's SAFE Act in New York State Rifle and Pistol Association v. Cumo

Judge Skretny, Chief Judge of the United States District Court for the Western District, sitting in Buffalo, applied intermediate scrutiny under the Second Amendment,  drawing on the "post- Heller rulings that have begun to settle the vast terra incognita left by the Supreme Court."  He concluded that the SAFE Act's definition and regulation of assault weapons and its ban on large-capacity magazines further the state’s important interest in public safety, and do not impermissibly infringe on Plaintiffs’ Second Amendment rights.  However, he concluded that the seven-round limit did not satisfy intermediate scrutiny both on the governmental interest and the means chosen.

The plaintiffs also challenged ten specific provisions of the SAFE Act as void for vagueness and thus violative of due process:

  • “conspicuously protruding” pistol grip
  • threaded barrel
  • magazine-capacity restrictions
  • five-round shotgun limit
  •  “can be readily restored or converted”
  • the “and if” clause of N.Y. Penal Law § 265.36 g muzzle “break”
  •  “version” of automatic weapon
  • manufactured weight
  • commercial transfer

 The judge found three unconstitutional - - - the “and if” clause of N.Y. Penal Law § 265.36, the references to muzzle “breaks” in N.Y. Penal Law § 265.00(22)(a)(vi), and the regulation with respect to pistols that are “versions” of automatic weapons in N.Y. Penal Law § 265.00(22)(c)(viii) - - - concluding that these provisions were vague and "must be stricken because they do not adequately inform an ordinary person as to what conduct is prohibited."

The opinion also rejects the dormant commerce clause challenge to the provision of the SAFE Act that effectively bans ammunition sales over the Internet and imposes a requirement that an ammunition transfer “must occur in person.”  The government had argued that the challenge was not ripe given that the section does not go into effect until January 15, 2014, but Judge Skretny decided the question was one of mere "prudential" ripeness and that the claim should be decided.  Applying well-established dormant commerce clause doctrine, the judge found first that the SAFE Act did not "discriminate" against out of state interests and moving to the "balancing test" under Pike v. Bruce Church, Inc. (1970), the "incidental effects on interstate commerce" were not "excessive in relation to a legitimate local public interest."

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Judge Skretny's 57 page opinion is scholarly and closely reasoned with specific findings.  Yet the Second Amendment issues certainly reflect the fact that there are no established standard for judicial scrutiny of the regulations of the "right to bear arms.  Recall that the Fifth Circuit's use of intermediate scrutiny in NRA v. AFT (regarding a federal restriction applying to persons less than 21 years of age)  and in NRA v. McCraw (regarding Texas restrictions also applying to persons less that 21 years of age) are both being considered on petitions for writs of certiorari by the United States Supreme Court.   Sooner or later, some sort of analytic framework for deciding Second Amendment issues will be established by the Court.  Until then, federal judges are left to navigate what Judge Skretny called the "vast terra incognita" of Second Amendment doctrine.

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January 2, 2014 in Courts and Judging, Dormant Commerce Clause, Due Process (Substantive), History, Interpretation, Opinion Analysis, Ripeness, Second Amendment, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 13, 2013

Is the Second Amendment Still Useful?

Intelligence Squared will host a live, on-line debate tomorrow, Thursday, November 14, at 6:45 p.m. EST, titled Has the Second Amendment Outlived its Usefulness?  The debate will feature Alan Dershowitz and Sandy Levinson (arguing yes) and David Kopel and Eugene Volokh (arguing no). 

The stream will be interactive with a Twitter feed, so viewers can join the discussion.  It'll also be available to watch on demand shortly after the event.

November 13, 2013 in News, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Sunday, October 6, 2013

Sunday Dress: Can A Student Wear an NRA T-Shirt to School?

This week in "dressing constitutionally" saw another NRA t-shirt student kerfuffle, this time in Orange County, California.

Here's the television segment that accompanied the LA Times article:

The incident seemingly ended with the school apologizing for asking the student to change her NRA shirt, a somewhat different result from the incident earlier this year in West Virginia, although the NRA seemed to be involved in each.

The constitutional concerns at a public school will center on the "substantial disruption standard" of Tinker v. Des Moines Independent Community School District, which  famously involved the wearing of black armbands by school students in protest of the Vietnam War.  Decided by the United States Supreme Court in 1969, Tinker established the substantial and material disruption standard for evaluating school speech. While the Court actually uses the word “interfere” more often than “disrupt,” and uses the terms synonymously, what has become known as the Tinker disruption standard requires that in order to curtail student speech, school authorities must show that the student speech would materially and substantially interfere with appropriate school discipline.  In Tinker itself, the Court noted that “the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities” because a few students wore black armbands.

The NRA shirt easily meets the threshold of being expressive, one that not all student wear satisfies. 

But also important is the actual school dress code.  Courts - - - including notably the Fifth Circuit - - - has upheld a dress code that prohibited all (or almost all) speech on clothes, including the text of the First Amendment.  

 

October 6, 2013 in Family, First Amendment, Second Amendment, Speech | Permalink | Comments (0) | TrackBack (0)