Wednesday, August 19, 2015
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.
Monday, April 27, 2015
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."
Thursday, March 26, 2015
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.
Wednesday, March 4, 2015
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.
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.
Thursday, December 18, 2014
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).
Thursday, July 3, 2014
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.
Tuesday, May 20, 2014
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.
Wednesday, March 26, 2014
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.
The 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.
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.
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.
The 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.
Sunday, February 16, 2014
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."
Tuesday, January 7, 2014
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.
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."
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.
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
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.
Sunday, October 6, 2013
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
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.
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.
Tuesday, September 24, 2013
According to a report in the Kansas City Star, David Guth, a journalism professor at University of Kansas has been placed on "administrative leave" for his tweet about after last week's shooting leaving 13 dead at the DC Navy Yard.
"The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.”
While there is an implication that some in the KU Administration might believe this constitutes advocacy of violence, it's doubtful that the tweet would rise to this level. It certainly does not rise to the level of a threat: Compare the Ninth Circuit in United States v. Bagdasarian and a finding of true threats in a blog post by the Second Circuit in United States v. Turner.
There is also the question of the lack of due process accorded to Professor Guth, as some have noted.
But perhaps most relevant is the Ninth Circuit's recent opinion in Demers v. Austin. Certainly Guth's tweet is a matter of public concern and he was speaking as a private citizen rather than as a public employee. On this view, his speech should be protected under the First Amendment. Moreover, Guth's tweet does not present the kind of close case presented in Demers and there should be little credit to claims of qualified immunity.
Guth's "personal blog" (as the blog itself proclaims) deserves similar First Amendment protection. (The blog entry for September 16, 2013 entitled "Where Do You Stand?" discusses the Navy Yard incident).
Like the so-called "political rant" last week by another academic, this would make a terrific in class exercise for those teaching First Amendment.
Thursday, September 12, 2013
The Illinois Supreme Court ruled today in Illinois v. Aguilar that a state law banning the aggravated unlawful use of weapons, or AUUW, violated the Second Amendment. At the same time, the court upheld state law banning possession of a firearm, or UPF, by a person under 18 years of age.
The ruling overturns the conviction of the criminal defendant in the case under the AUUW, but upholds the conviction under the UPF.
But the ruling is limited to the state's old (and defunct) AUUW and doesn't affect current law. That's because Aguilar was convicted under the state's old AUUW. The Seventh Circuit already struck that law as violating the Second Amendment (and later denied en banc review) in Moore v. Madigan. The state has since amended the law to allow for concealed carry of firearms with a permit and with certain restrictions. Thus today's ruling only affects Aguilar; it doesn't say anything about the state's current law.
Illinois's old AUUW--the one Aguilar was convicted under--says:
(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode or fixed place of business any pistol, revolver, stun gun or taser or other firearm; [and]
(3) One of the following factors is present:
(A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense . . . .
The court, following the Seventh Circuit in Moore, held that the Second Amendment includes a right to keep and bear arms outside the home for individual self-defense, and that the "comprehensive," "categorical" ban in the old AUUW law "amounts to a wholesale statutory ban on the exercise of a personal right that is specifically named in and guaranteed by the United States Constitution, as construed by the United States Supreme Court." The court said, "In no other context would we permit this, and we will not permit it here either.
At the same time, the court upheld the state's UPF law. (That law was not changed in the wake of Moore.) It says:
A person commits the offense of unlawful possession of firearms or firearm ammunition when:
(a) He is under 18 years of age and has in his possession any firearm of a size which may be concealed upon the person . . . .
The court said that the Second Amendment doesn't protect a juvenile's right to possess a firearm--that the UPF restriction falls into the category of allowable "longstanding prohibitions on the possession of firearms" that the Supreme Court carved out in Heller. The court said that laws banning possession of firearms by minors have been around for a long time (even if many colonies permitted or even required minors to own and possess firearms for purposes of militia service, as Aguilar argued).
Thursday, August 1, 2013
In its opinion in Drake v. Filko, a panel of the Third Circuit has rejected a Second Amendment challenge to New Jersey's handgun permit law, N.J.S.A. § 2C:58 - 4. Affirming the district judge, the majority opinion by Judge Ruggero Aldisert (who was appointed to the Third Circuit by President Lyndon Johnson) upheld the statutory "justifiable need” standard for a permit to carry a handgun in public.
The majority declined to "definitively declare that the individual right to bear arms for the purpose of self-defense extends beyond the home, the “core” of the right as identified by Heller," referring to the Supreme Court's controversial 2008 decision of Heller v. District of Columbia finding that the Second Amendment should be interpreted as including an individual right. Yet the majority moved on to assume that even if the individual right extended beyond the home, does a "requirement that applicants demonstrate a “justifiable need” to publicly carry a handgun for self-defense burdens conduct within the scope of that Second Amendment guarantee. It concluded that the “justifiable need” standard of the Handgun Permit Law is a longstanding regulation that enjoys presumptive constitutionality under the teachings articulated in Heller, noting that a "close analogue to the New Jersey standard can be found in New York’s permit schema," which was upheld by the Second Circuit as we discussed last November.
The majority acknowledged that this could well settle the matter. But "in this new era of Second Amendment jurisprudence," it decided it was important to proceed to apply the means-end scrutiny under its circuit precedent. And as in most means-end inquiries, the level of scrutiny was a central issue. Predictably, the challengers argued for strict scrutiny, but their argument rested upon an analogy to First Amendment prior restraint doctrine. The court rejected that analogy, canvased the Second Amendmen levels of scrutiny being applied in the circuits, and concluded that "intermediate scrutiny" was the correct standard, and articulated it thusly:
under intermediate scrutiny the government must assert a significant, substantial, or important interest; there must also be a reasonable fit between that asserted interest and the challenged law, such that the law does not burden more conduct than is reasonably necessary.
After an extensive discussion, the majority found that the NJ law satisfied this standard.
In a dissenting opinion as lengthy as the majority opinion, Circuit Judge Thomas Hardiman disagreed with almost every aspect of the majority's well-reasoned opinion. Judge Hardiman argued that the Second Amendment should apply outside the home, argued that NJ's gun restriction was historically not longstanding, and while agreeing that intermediate scrutiny was the correct standard, disagreed that it was satisfied.
While the United States Supreme Court denied certiorari in the Second Circuit opinion upholding NY's limitation on concealed gun laws, a petition for certiorari will most probably be filed in this Third Circuit case. At some point, the Court may again take up the confusing issues left in the wake of its two controversial decisions in Heller v. District of Columbia and McDonald v. City of Chicago.
Tuesday, July 9, 2013
The Illinois state legislature today voted in both houses to override Governor Quinn's "amendatory veto" of the state's concealed carry bill. The move means that Illinois is the last state in the Union to allow concealed carry of a firearm, with none of the changes recommended by Governor Quinn. We posted most recently here.
The move also meets a deadline set by the Seventh Circuit in ruling Illinois's prior ban on concealed carry unconstitutional, in violation of the Second Amendment. If the state had not enacted a concealed carry law (with licensing and certain restrictions), the Seventh Circuit ruling would have meant that Illinoisians could carry a concealed weapon without a license, permit, training, or other restriction.
State AG Lisa Madigan had asked for, and received, more time from the Supreme Court to determine whether to appeal the Seventh Circuit's ruling. (The full Seventh Circuit denied en banc review.) In light of the legislature's move today, she indicated that the case is moot.
To register a handgun in the state of New York, the fee is $3-10. However, a New York statute, New York State Penal Law § 400.00(14), allows the City of New York and the adjoining county of Nassau on Long Island to set and collect a different fee. The challengers argued that this statutory provision violated equal protection. Additionally, the challengers argued that the fee set by New York City - - - $340 for a three year license - - - violated the Second Amendment. In its opinion in Kwong v. Bloomberg, a unanimous Second Circuit panel upheld both the state statute and the city regulation, affirming the district judge.
Judge Jose Cabranes rejected the argument that the $340 fee set by NYC Admin. Code § 10-131(a)(2) places too great a burden on their Second Amendment rights. Following the path set by other judges, the Second Circuit held that the Supreme Court’s First Amendment fee jurisprudence provides the appropriate foundation for analyzing the constitutionality of fees under the Second Amendment. Here, the court held that the "undisputed evidence" demonstrated that "the $340 licensing fee is designed to defray (and does not exceed) the administrative costs associated with the licensing scheme."
Moreover, the mere fact that the license is more expensive does not make it a substantial burden on one's Second Amendment rights. The opinion interestingly includes a "see also" and cites Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874 (1992) including this quote in the parenthetical: (“The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to [exercise the right] cannot be enough to invalidate it.”)
Even if the NYC law were subject to intermediate scrutiny - - - as the concurring opinion by Judge John Walker asserts - - - and as the Second Circuit previously applied to a concealed handgun law - - - the fee would still survive, as Judge Walker agrees.
As for the equal protection claim against the state statute allowing differential fees, the court rejected the argument that because a fundamental right is at stake, the state statute merited strict scrutiny. The court held that a fundamental right was not "burdened" and further that geographic classifications are not suspect. Applying rational basis, the court found it easily satisfied.
Again, Judge Walker concurring would apply intermediate scrutiny, and again, he found that the higher fee would survive the heightened level of scrutiny.
The disagreement amongst the judges regarding the standard is thus of no moment - - - at least in this case. But further litigation about what constitutes a burden on a Second Amendment rights will likely continue.
Monday, July 8, 2013
It's summer in North America and that means scholarship-time for legal academics. No matter what the subject of your in-progress/forthcoming/almost finished article, take time to read a brief essay by Ronald Collins and Lisa Lerman, Disclosure, Scholarly Ethics, and the Future of Law Reviews: A Few Preliminary Thoughts By Ronald K.L. Collins & Lisa Lerman, 88 Wash. L. Rev. 321 (2103), available here.
They argue that your author's footnote might need a bit of expansion to disclose any direct or indirect compensation or involvement in your subject. Disclosure is not the norm in law reviews, especially when it comes to academics as opposed to practioners. The comparison is even more stark when it comes to the practices in other disciplines.
But their suggestion, if rare, is hardly new. Indeed, they quote from the AALS "Statement of Good Practices by Law Professors in the Discharge of their Ethical and Professional Responsibilities":
A law professor shall disclose the material facts relating to receipt of direct or indirect payment for, or any personal economic interest in, any covered activity that the professor undertakes in a professorial capacity . . . . Disclosure of material facts should include: (1) the conditions imposed or expected by the funding source on views expressed in any future covered activity and (2) the identity of any funding source, except where the professor has provided legal representation to a client in a matter external to legal scholarship under circumstances that require the identity to remain privileged under applicable law. If such a privilege prohibits disclosure the professor shall generally describe the interest represented.
And, perhaps less surprising perhaps, it's something Justice William O. Douglas recommended almost half of a century ago.
They provide some scintillating examples worth consideration. These might make you reflect not only on your own ethical responsbility to disclose, but perhaps also upon the missing disclosures in sources upon which you rely, as in the Second Amendment area which we discussed.
And it is certainly worth passing on to your school's law review editors.