Friday, July 27, 2018

Ten Truths About the Second Amendment

By Eric Segall

On Tuesday, the Ninth Circuit Court of Appeals invalidated Hawaii's requirement that people receive a license before openly carrying a gun in public. This aggressive act of judicial review might be reviewed by the Supreme Court, especially if Brett Kavanaugh is confirmed as a Justice. The Supreme Court has not reviewed a Second Amendment case since 2010, but as I argued here, it is likely the Court will return to this area of law in the near future now that Justice Kennedy has retired. Here are ten truths about the Second Amendment.

1.    The Second Amendment provides that "A well regulated militia, being necessary to the security of a free state, the right of that people to keep and bear arms shall not be infringed."

2. From the beginning of this country's history, the states and Federal government have regulated the possession, sale, and transfer of guns. For example, even in the late 18th century, big cities like New York and Boston regulated the sale and safe keeping of gun powder including limits on how much gunpowder any one person could purchase. Prior to the civil war, a number of states prohibited concealing firearms in public. There can be no dispute that guns have been regulated consistently since this country was founded.

3. Despite the abundance of gun laws since the beginning of the Republic, the Supreme Court did not hold that the Second Amendment protects an individual right to own guns until 2008 in the decision District of Columbia v. Heller.

4.  Former Republican Chief Justice Warren Burger once said that the idea that the Second Amendment protects an individual right to own guns is "one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups, that I've ever seen in my lifetime."

5.  For much of the 20th century, the National Rifle Association supported laws relating to gun safety. In fact, its leadership even lobbied for and supported gun regulations. In 1939, the president of the NRA testified in front of Congress that he did not believe "in the general practice of carrying weapons." It wasn't until the 1970's that the NRA opposed virtually all regulations of guns.

6. In its entire history, the United States Supreme Court has only struck down two laws on the basis of the Second Amendment, and both were complete prohibitions on the possession of handguns.

7. In the Court's opinion in 2008 striking down the District of Columbia's ban on handguns, Justice Scalia and four other conservative Justices held that the Second Amendment protects the right to possess guns "in common use." Not only is this reading inconsistent with the Militia language in the Second Amendment's text, but it is contradicted by the clear history of the Amendment. As historian Saul Cornell, among many others has observed, at the time of the founding all able bodied men had to serve in the militia and bring military, not hunting, weapons to their service. The Second Amendment was exclusively concerned with this obligation and had nothing to do with self-defense in the home or hunting.

8. All constitutional rights, including the right to free speech, are limited and must be balanced against important state interests. Perjury and bribery involve pure speech but can be punished by the government because of important state concerns. Even if the Second Amendment created a personal right to own guns, that right would have to be balanced against state interests in public safety. This explains why in Heller itself, the conservative majority said that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

9. Soon after Heller was decided, Judge Harvey Wilkinson, a Ronald Reagan appointed Judge on the United States Court of Appeals for the Fourth Circuit wrote the following  about the problems Heller would produce: "Courts across the country will face detailed questions about firearms regulations and will provide varied and often inconsistent answers. Circuit splits and open questions will persist for our lifetimes. And for what purpose? What justifies the judiciary asserting its primacy in yet another new arena? Surely not its greater expertise. Surely not, as in apportionment, a dysfunctional political process....  Accordingly, the Court should honor the structure of our constitution, stay out of the thicket, and leave the highly motivated contestants in this field to press their agendas in the political process where the issue properly belongs and where for centuries it has remained." 

10. In a dissent in Heller II v. District of Columbia, Judge Kavanaugh wrote that Americans have a constitutional right to buy and possess semi-automatic rifles because such weapons are in "common use" and have not, according to Kavanaugh,  been traditionally regulated. President Trump's nominee to the Supreme Court believes that Americans have a constitutional right to possess semi-automatic rifles even though the founding fathers could not possibly have conceived of such dangerous weapons that could jeopardize the public safety. Such a leap is not justified by text, history or precedent.


Joe said...

In Caetano v. Massachusetts (2016), the Supreme Court upheld Heller/McDonald as precedent and held the Massachusetts Supreme Court's reasons for upholding a ban on stun guns did not meet the terms of the rulings. It was a narrow per curiam but had certain potential to strengthen the individual rights view, including since the gun was possessed in a public place.

Alito concurred separately, arguing that the per curiam was too weak of a honoring of the Second Amendment. (I am not aware of any other separate opinion joined by Alito though Scalia, Thomas & Gorsuch joined or wrote a few, concerned about the "second class" status given to the 2A in their view.)

I agree it is likely that a justice with a stronger individual rights view than Kennedy would assist in bringing a new case for full argument though I'm not sure how broadly Roberts will rule. When Heller was argued, Paul Clement for the government was wary about strict scrutiny since that would threaten a range of regulations. Roberts was dismissive of worrying about scrutiny, arguing a look at history would help guide the decision to determine if a regulation was acceptable. Kennedy was not the only one who had a somewhat loose respect for levels of scrutiny (he is often criticized there, especially as applied to gay rights cases).

As a matter of good judicial policy, clarity over the 2A would be appropriate with some split in the circuits. One has a right to be wary about the result in a Kavanaugh/Gorsuch Court though.

Shag from Brookline said...

Stun guns are not designed, at least currently, to be deadly. How many stun guns would it take to address the number of persons that a singe semi-automatic rifle could potentially address? Self-defense with a stun gun is vastly different in its effect on the victim as compared to self-defense in the use of a semi-automatic rifle. A good guy with a stun gun might stop a bad guy with a semi-automatic rifle. While a good guy with a semi-automatic rifle may stop a bad guy with a stun gun, there is the chance that the firing power may stop innocent bystanders as well.

Joe said...

The relative weak nature of the stun gun was actually part of Alito's opinion, one portion arguing some might for reasons of conscience might want to use a stun gun since it is less lethal. A sort of free exercise argument.

Shag from Brookline said...

The self-defense aspect of Heller (2008, 5-4) has had a long history of evolution both with respect to common law, statutory law and in more recent years with "stand your ground" statutes enacted by some states. Earlier versions of common law self-defense called for retreat under certain circumstances, as well as less lethal means. Did Heller define a universal or federal self-defense or leave self-defense to be determined by state law, including as it might evolve over time? Did the McDonald (2010, 5-4) decision applying the 2nd A to the states via 14th A incorporation address whether self-defense at the state level would mean what constituted self-defense under state law at the time the 13th A was ratified on July 28, 1868 or as the law of self-defense might evolve over time?

Joe said...
This comment has been removed by the author.
Joe said...

Yes. Heller/McDonald focused on both self-defense and the home.

Caroline Kennedy co-wrote a book on the Bill of Rights some time back and the 2A case came out of Illinois (Quilici v. Village of Morton Grove) and the dissent in significant part used a privacy based rationale that put special emphasis on the home.

["A fundamental part of our concept of ordered liberty is the right to protect one's home and family against dangerous intrusions subject to the criminal law."]

I see some force in that but the Heller majority used the Second Amendment, which makes the comments in the opinion regarding the special force of the right in the home a tad curious. Alito also noted that the understanding the 2A changed some between 1791-1868. An opinion by Kennedy would have likely been even more open to recognizing some developing understanding.

Prof. Segall gave him a limited compliment for being open about that. How the Supreme Court will handle a new case, especially if in involved arms outside the home, is something of an open question. It is somewhat likely Kagan/Breyer would accept Heller as precedent and try to leave as much opening for regulation as possible. Roberts/Alito will have limited concern for original understanding, but might use it for affect. OTOH, even Thomas has been known to not be too concerned with that when he writes majority opinions.

The stun gun case is something of a joker though I wanted to include it for completeness.

Shag from Brookline said...

As I understand it, "stand your ground" laws may be distinguishable from self-defense. So might the former be treated less favorably than the latter under Heller/McDonald? Originalism has not well served interpretation/construction of the 2nd A.

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Unknown said...

The most important problem with Heller and it’s progeny is that a well-regulated militia is no longer necessary to the security of a free state. Heller’s reasoning supporting the truth of the prefatory clause is so bad that it could be given as a simple fallacy detection exercise to first year undergrads. And if the prefatory clause is false, then the Amendment should be functionally dead, because it has no application. If I say “Amy being fed cake being necessary to her well being, we should bake her a cake”, but it turns out that Amy being fed cake is not necessary to her well being, then the instruction to bake her a cake should not be followed. Ditto with the Second Amendment. For linguists and philosophers, this is a no brainer.