Firearms and Violence A Critical Review (2005) / Chapter Skim
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Appendix C Judicial Scrutiny of Challenged Gun Control Regulations: The Implications of an Individual Right Interpretation of the Second Amendment--Scott Gast
Appendix C Judicial Scrutiny of Challenged Gun Control Regulations: The Implications of an Individual Right Interpretation of the Second Amendment--Scott Gast
Pages 276-298
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From page 276... ...
Several months after the imposition of this injunction, Emerson was indicted under a federal law prohibiting any person subject to such a court order from possessing a firearm.1 Emerson challenged his indictment in part on the ground that this federal law violated his Second Amendment right to keep and bear arms.2 To the surprise of many in the legal community, the United States Court of Appeals for the Fifth Circuit was sympathetic to his claim, holding that the Second Amendment does, in fact, protect an individual's right to keep and bear arms.3 Emerson's victory, however, was not unqualified. While the Fifth Circuit held that the Second Amendment protects an individual right, it explained that the right is not absolute: *
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From page 277... ...
] that the collective rights view, rather than the individual rights models, reflects the proper interpretation of the Second Amendment.")
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From page 278... ...
King (2003) , a panel of three circuit judges wrote that, "if we were writing on a blank slate, we may be inclined to follow the approach of the Fifth Circuit in Emerson."8 One judge went even further, writing a special concurrence to emphasize his view that the Ninth Circuit had gotten its interpretation of the Second Amendment wrong, and that the court should now embrace an individual right view of the Amendment.9 Despite their disagreement with the earlier court decision, the judges acknowledged that they were bound by the precedent set in Hickman v.
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From page 279... ...
On July 15, 2003, United States Senator Orrin Hatch of Utah introduced the District of Columbia Personal Protection Act, which would repeal the District of Columbia's ban on firearm ownership and restrict the authority of the District's council to prohibit such ownership in the future. In introducing the measure, Senator Hatch noted that "this bill goes a long way toward restoring the constitutionally guaranteed right of Americans who reside in the District of Columbia to possess firearms."18 His bill was introduced with 21 cosponsors.19 In a similar vein, two public policy organizations filed separate lawsuits challenging the District of Columbia's handgun ban, arguing that it violates the Second Amendment.20 These developments are remarkable in that they signal an apparent momentum toward the widespread acceptance of an interpretation of the Second Amendment that protects an individual right to possess a firearm.
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From page 280... ...
This appendix attempts to identify and explore the issues that arise under an individual right interpretation of the Second Amendment, as well as to demonstrate the need for detailed empirical research on the efficacy of various gun control measures in advancing purported state interests in reducing gun-related crime and violence. Part I continues to trace the fairly recent rise of the individual right interpretation, demonstrating why such an interpretation is a distinct possibility in the future.
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From page 281... ...
interpretation of the Second Amendment has been called the "sophisticated collective rights" model.24 Under this view, the right protected is an individual one, but only to the extent that the individual protected is a member of a state militia. That is, an individual has the right to keep and bear arms when the state does not itself provide the arms for its militia.
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From page 282... ...
One commentator has suggested that the collective rights model was the uncontroversial interpretation of the Second Amendment for well over a century; then, between 1970 and 1989, the balance began to tip: 25 law review articles supporting the collective rights model were published, while 27 articles supporting the individual 26 See, e.g., Volokh, The Commonplace Second Amendment, 73 N.Y.U.
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Rev. at 8-10 (noting that 16 of the 25 articles supporting the pro-individual right model published between 1970 and 1989 -- nearly 60 percent -- were written by such lawyers)
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From page 284... ...
, a case in which a former police officer challenged a federal law prohibiting persons convicted of domestic violence from possessing a firearm as violating his Second Amendment right.42 The court of appeals upheld the law, noting: "The link that the amendment draws between the ability `to keep and bear Arms' and `[a] well regulated Militia' suggests that the right protected is limited, one that inures not to the individual but to the people collectively, its reach extending so far as is necessary to protect their common interest in protection by a militia."43 The Fifth Circuit's decision in Emerson is a clear break with this trend (and the Ninth Circuit's opinion in Nordyke suggests further dissatisfaction within the federal courts with the perpetuation of a collective rights interpretation)
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From page 285... ...
Miller (1939) , the Court's most recent and most extensive discussion of the amendment, the Court upheld the National Firearms Act against a challenge that it unconstitutionally infringed upon the Second Amendment right to bear arms.
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From page 286... ...
.53 The authors further argue that the Court's decision to reject the government's primary argument, an iteration of the collective rights model, undermines any conclusion that Miller adopted a collective rights interpretation. Rather, the Court reasoned that, assuming the Second Amendment protects an individual's right to bear arms, that right only extended to weapons suitable for use in a militia.54 They emphasize that the government's argument was the only one before the Court; the defendants neither filed briefs nor appeared at oral argument.55 Recent Supreme Court opinions and other writings by the justices may provide some indication as to where certain justices stand on the question of the Second Amendment.
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From page 287... ...
Beginning in the early 20th century, however, the Supreme Court began to apply some, but not all, of the Bill of Rights limitations to the states, in a process known as incorporation.60 If the Second Amendment is found to protect an individual right to keep and bear arms, the question arises as to whether that protection extends only to federal restrictions on the right or whether it will reach state law restrictions as well. Opponents of incorporation point to the Supreme Court's decisions in United States v.
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From page 288... ...
, the Court elaborated on this test: the question is "whether a right is among those `fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,' whether it is `basic in our system of jurisprudence,' and whether it is a `fundamental right, essential of a fair trial.'"68 Since outlining the modern incorporation test, the Supreme Court has not reexamined the issue of incorporating the Second Amendment's guarantee into the concept of due process.69 Commentators have argued that a faithful application of the modern test, however, would require incorporation of the amendment.70 These commentators suggest that the text of the Second Amendment's prefatory clause, remarking on the right being "necessary for the security of a free State," is strikingly similar to the current incorporation test: "implicit in the concept of ordered liberty."71 If the Second Amendment is deemed to protect an individual right, resolution of the incorporation question will determine how far the guarantee reaches: which restrictions -- federal only or state as well -- will be affected.
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From page 289... ...
By its very terms, the Second Amendment appears to protect the right to keep and bear arms from any restriction whatsoever: "the right of the people to keep and bear Arms, shall not be infringed."72 Yet no one seriously argues that private citizens should be allowed to possess nuclear weapons or shoulder-fired antiaircraft rockets.73 Determining what is protected and what is not, especially given the technological and societal changes since the amendment was adopted, presents a difficult task; some have lamented that the process of outlining the scope of the Second Amendment's protections with any precision may be impossible.74 One commentator has argued that the failure to coherently outline the scope of the right has led to an "erratic and ill-defined pattern of adjudication" that can be solved only "by developing a final and conclusive interpretation" of the amendment.75 Determining the scope of protection is important in answering the threshold question of when the right is infringed. A narrow interpretation provides more room for the operation of gun control measures that limit an individual's ability to own a firearm 72U.S.
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21, 1995) (arguing that the phrase "bear arms" was originally understood as meaning to serve in the military: "To bear arms is, in itself, a military term.
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In determining what is unprotected expression, the Supreme Court has on occasion looked to the history of the First Amendment.88 But relying on the history of the amendment and the framers' intentions regarding the freedom of speech is problematic, as there is evidence that the framers did not intend the protection to reach very far; according to one constitutional scholar, "Supreme Court cases dealing with freedom of expression focus less on the framers' intent than do cases involving many other constitutional provisions. There is relatively little that can be discerned as to the drafters' views other than their desire to prohibit prior restraints .
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From page 292... ...
Defining the scope of the Second Amendment's protection is one way in which the permissibility of challenged gun control measures can be evaluated. For example, if one accepts the Kates test outlined above as an accurate measure of the scope of the right, it is easy to see why handguns are clearly protected, while weapons like Saturday Night Specials or switchblade knives are not.91 It could be argued that the amendment was never intended by the framers to protect ownership of these weapons from government regulation, because these weapons are not necessary for military, law enforcement, or self-defense purposes.
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From page 293... ...
"[C] losely examining the way that courts determine whether a right has been infringed may be very relevant to defining the scope of the right and to evaluating the state's justification for impairing the right."92 This commentator goes on to observe that "often the Court does not isolate the issue of infringement, but rather implicitly subsumes it within an analysis that focuses on the scope of the right and the state's justification for any purported impairment."93 The Supreme Court has held that not every regulation that impacts a constitutional right rises to the level of an infringement: "As our jurisprudence relating to all liberties save perhaps abortion has recognized, not every law which makes a right more difficult to exercise is, ipso facto, an infringement on that right."94 To qualify as an "infringement," a government regulation must place a significant burden on the exercise of the right; indirect or incidental burdens may not be considered to "infringe" on protected activity.95 The Supreme Court has indicated that the key to determining whether a right has been infringed is the "directness and substantiality of the interference."96 Again, the Supreme Court's consideration of burdens placed on the exercise of the First Amendment right to free speech is illustrative.
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From page 294... ...
Nonetheless, limiting the time, place, or manner in which one can permissibly express one's ideas does make the exercise of the right more difficult. The key difference is that the burdens created by these regulations are not so significant as to cross the threshold to become an "infringement." Many gun control regulations burden the exercise of an individual right to private firearm ownership in one way or another, but many of these regulations may nevertheless be permissible if the burdens they impose do not rise to significant levels.
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From page 295... ...
This heightened judicial scrutiny comes in a several forms. The most demanding level of court examination is strict scrutiny, which is typically reserved for infringements on so-called fundamental rights.102 Under the strict scrutiny regime, an infringement will be upheld only if it is narrowly drawn to serve a compelling state interest.
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From page 296... ...
This differential treatment is implicit in the balancing process involved in reviewing restrictions on speech: "The categories of unprotected and less protected speech reflect value judgments by the Supreme Court that the justifications for regulating such speech outweigh the value of the expression."107 Heightened judicial scrutiny may also be applied through an "undue burden" standard. This standard was announced in Planned Parenthood v.
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III. THE CONTRIBUTION OF EMPIRICAL RESEARCH TO JUDICIAL SCRUTINY The balancing common to the various methods of heightened judicial scrutiny discussed above is only enhanced by empirical analysis of how well a challenged regulation actually does or does not achieve its purported state interest.
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From page 298... ...
CONCLUSION As demonstrated by the recent accumulation of academic support, as well as the Fifth Circuit's decision in Emerson, an individual right interpretation of the Second Amendment is a distinct possibility for the future. Such an interpretation would have many implications for the judicial review of challenged gun control regulations.
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