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Friday, February 01, 2008

DC v. Heller: The Primary Importance of the Secondary Question

DC v. Heller will be the first Supreme Court decision on the Second Amendment in nearly 70 years, so it has naturally drawn much attention. Most of the discussion has centered on what we might term the "primary" question at issue in the case: does the Second Amendment protect an individual right to bear arms or just protect state militias from federal interference? Thanks to the ambiguous language and history of the Second Amendment ("A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed"), the very identity of the substantive right has remained unclear.

I want to call attention to what seems like a secondary question raised by Heller, but which in fact may turn out to be far more consequential: what standard of review applies to laws infringing on Second Amendment rights? Assume, as I do, that a majority on the Court determines that there is an individual right to bear arms unrelated to militia service. No right is absolute, the Court often reminds us, so the test or standard adopted to adjudicate challenged laws becomes pivotal. If the Court adopts a strict scrutiny-type of standard, many gun control measures will likely be invalidated. If, however, a lower standard applies, more gun control measures are likely to be upheld.

What standard should apply to law burdening an individual right to bear arms? My view is that the Court should follow the experts: the state courts. This very question has been asked and answered dozens of times in state courts applying state constitutional provisions. Forty-two states have constitutional protections for the individual right to bear arms and the state courts have authored hundreds of opinions deciding the constitutionality of burdens on the right. Every state, without exception, applies a "reasonable regulation" standard, equivalent in effect to rational basis review. No state applies strict scrutiny or any other form of heightened review.

Posted by Adam Winkler on February 1, 2008 at 12:44 AM | Permalink


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Full Disclosure - I AM PRO GUN. I have a gun next to me right now, one stays on my desk when I am home. I want the ban overturned, for many reasons. The greatest of which is that I have worked in D.C. public housing as a Special Police Officer and it saddens me greatly to see the results of the District's "reasonable gun control" children die because of it whether you believe it or not.

However, having said that I submit that guns are not the issue at all. The Bill of Rights is. Which right are we going to dispense with next? How about muzzling the press when they criticize a war effort for reasonable reasons of national security?

How about nullifying the fifth amendment when a suspect is accused of a really heinous act for public safety?

How about we do away with due process to ease the burdens on the courts? Police officers are sworn after all, why can't they adjudicate and impose punishment on the spot? Would not that save money and deter crime?

When you wish the Second Amendment to be a dead letter as D.C. Council does, one should think long and hard about what they wish for.

Posted by: Douglas Wade Beatty | Feb 23, 2008 11:15:37 AM

Apparently Vermont wasn't included in this analysis (STATE v. ROSENTHAL)

Posted by: Willy | Feb 2, 2008 5:13:21 PM

There is nothing ambiguous about the Second Amendment at all. It calls for a militia, states that it is necessary for the security of a free state, and forbids the government from infringing the right of the people to keep and bear arms.

Since the 'whole body of the people' constitute the militia, the right of the people to keep and bear arms is necessary to the security of a free state.

No militia means no free state. That is what "necessary" means. Do I need to define 'infringed'?

The Brady Campaign claims we want to erase the first clause. Not true in my case anyway. However, they seem to want to erase certain words themselves: 'necessary', 'the people', and 'not'.

Posted by: Federal Farmer | Feb 2, 2008 3:10:27 PM

I have to agree with Asher here - I think that if the court recognizes an individual right (which seems the likely, though far from certain, outcome), then they will have to apply a level of scrutiny above rational basis. Lawrence not withstanding, rational basis essentially rubber stamps whatever regulation the government desires. For an enumerated right, I think the court will have a difficult time saying essentially "there is an individual right to own guns, but the government can limit that right in any way it desires."

Posted by: Ryan | Feb 2, 2008 1:49:29 PM

Applying rational basis review to Second Amendment questions would be the functional equivalent of reading the Second Amendment out of the Constitution altogether. I'm not sure that even Justices Ginsberg and Stevens are intellectually dishonest enough to do that.

Posted by: BC | Feb 2, 2008 1:33:14 PM

No right is absolute,

Only a right-wingnut Neanderthal believes that the right to abortion is not absolute.

Posted by: anonymous coward | Feb 2, 2008 12:37:50 PM

Asher: Why do you say you don't believe there's an individual right to own and carry arms? The very people who wrote the Second Amendment stated that it was their intent, in no uncertain terms, that regular citizens should be armed.

On the original article: How is the right to keep and bear arms different from other Constitutionally enumerated rights? Do we apply "reasonable restrictions" to the First Amendment rights to free speech or freedom of religion? About the only restrictions on those include times when you wind up threatening the lives of others (the classic yelling "fire!" in a crowded theater, or operating a cult on the religious side.) Personally, I'm fine with similar restrictions on my right to keep and bear arms (no waving a gun around in public without cause, stuff like that.) That pretty much blows most gun control restrictions out of the water.

Then again, we've had some pretty unreasonable restrictions on rights related to the Fourth Amendment (among others) lately, and the court has supported them. Most of the restrictions on 2A rights fall into this category. In fact, most gun control restrictions are downright silly. In some place two firearms can function identically, but one will be illegal due to external features or simply the make and model stamped into the firearm.

I also would like to ask Mr. Winkler what kind of restrictions he thinks would be found reasonable.

Posted by: Sage | Feb 2, 2008 12:21:59 PM

Part of the practical problem is that states are all over the map with what "reasonable regulation" actually means. Illinois considers it reasonable for towns to be able to ban handgun posession entirely based on 3 out of 5 votes on a town council, New Jersey considers it reasonable for the police to simply not act on gun license applications for a year, or to define bb-guns as full blown firearms, Massachussetts consideres it reasonable to require a carry permit for pepper spray, and so forth and so on. Those extreme positions are pretty clearly at odds with the rest of the country, which takes the attitude that reasonable regulation extends to having gun owners prove they're neither insane nor criminal before carrying their guns in public.

Posted by: geekWithA.45 | Feb 2, 2008 11:31:18 AM

What ever happened to equal protection? If infringements on the First Amendment are subject to strict scrutiny, why not the Second? Moreover, if one accepts the rationale for the amendment that was in the minds of the Framers,* the "rationale basis" and "intermediate scrutiny" tests render the Second Amendment meaningless. The Heller case makes that clear.

As the Framers feared, we are witnessing the slow death by a thousand cuts of the Bill of Rights. The 9th and 10th Amendments are dead letters. Now, the effort is to construe the 2nd in to impotency. What provision of the Bill of Rights shall we next obliterate? Trial by jury? Confrontation? Assembly? One can always conjure a "rational basis" for attenuating liberty.
* Asher, I do not mean this to sound disrespectful or uncivil, but here goes. The notion of a "collective right" to the bearing of arms is nothing more than ahistorical sophistry. The right to keep and bear arms was -- and is -- a very personal one. It was considered one of the "Rights of Englishmen" incorporated in to the Constitution (Federalist 51). The militia was but one policy reason for this, but not the only reason. And, by the way, the National Guard is NOT the militia. The NG is subject to federalization at any moment, as Gov. Wallace found out in the 60's. Not much of a defense against gov't tyranny.

If the 2nd Amendment needs amending, then amend it. For myself, I might even support such a move. But if, as seems likely, the country lacks the consensus needed to amend the Bill of Rights, that should tell you something.

Posted by: DaSarge | Feb 2, 2008 10:05:34 AM

&Do you want "reasonable regulation" of the other items in the Bill Of Rights?
Were the Founding Fathers deliberately wasting ink when appending "...shall not be infringed"?
Should a right be recinded just because someone _might_ abuse it?
Was the Bill Of Rights written to say ;the government is not allowed to do X ... unless it really wants to"?
Can you point to one instance where the Supreme Court noted "No right is absolute" and then applied "intermediate scrutiny" or "reasonable regulation"?
Do rights exist only insofar as unpopular (though harmless) exercise thereof is disliked by a majority?

The whole point of the Bill Of Rights is to make abundantly clear that there are lines that the federal government is NOT allowed to cross, save only for specific cases involving strict scrutiny.
George Washington et al did not fight an 8-year war against a world superpower just so the replacing government could infringe natural rights just as the prior one did.

Posted by: Carl Donath | Feb 1, 2008 12:57:19 PM

Without giving any thought to this at all, I think that if you're going to interpret the Second Amendment to mean that there's a right to bear arms unrelated to militia service, you at least have to apply intermediate scrutiny. I don't think there is such a right, but if they do and read it to be expressly there, I think it's tough for them to argue that, well, it's an express right in the Constitution but we don't think it's essential to ordered liberty or terribly important so we'll just apply rational basis review.

Posted by: Asher | Feb 1, 2008 1:39:05 AM

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