How the Court Should Decide Heller (Part Two)

A while ago I offered my thoughts on how the Court ought to decide the individual rights vs. collective rights dispute in Heller, concluding that the Second Amendment does indeed protect individual rights to keep and bear arms. (n1)  Now, allow me to complete my pseudo-analysis of the case by discussing the substantive standards I believe the Court should apply to the District of Columbia's gun regulations and the conclusions the Court should reach about the constitutionality of those regulations.

I am not arrogant enough to pretend to offer a comprehensive and authoritative statement of the all the constitutionally-derived standards and rules that comprise the true legal meaning of the Second Amendment.  However, I will be brave enough to set out a (very) rough and tentative framework for applying the Amendment.  To put it directly:  A gun regulation is constitutional under the Second Amendment if (1)  it concerns firearms that are not similar in role to those in use at the time of the framing of the Amendment, (2) if it places limited and reasonable restrictions on the classes of people who can possess firearms, or (3) if it places reasonable restrictions on the purchase, storage, or carrying of firearms.

The first category of regulations mentioned survive scrutiny under the Second Amendment because they do not regulate "arms" within the meaning of the Amendment.  Of course, the difficulty arises in determining which sorts of modern weapons are and are not "arms."  The key to resolving this, I think, is to look to how firearms were used at the time of the framing.  That is, we should inquire into the nature of an arm, as the Constitution uses the term.  Firearms at the time of the framing were personal weapons: the squad-based highly portable machine guns of today, or even the Gatling Guns of the 19th century, had no equivalent.  Moreover, when firearms were used -- whether for military purposes, for self-defense, or for hunting -- they were used (almost without exception) overtly: guns made to evade detection (such as plastic guns meant to undetected by metal detectors) or silenced weapons had no equivalent.  On the other hand, the vast majority of modern pistols, rifles, and shotguns are fairly equivalent to their 1780's era predecessors in their personal nature and the functional overtness of their possession and use.  Certainly, not all modern firearms can be so clearly classified in one category of another, but the "personal and overt" standard seems like a decent starting place for discerning what is a constitutionally-protected arm.

The second and third categories of permissible regulations are based upon implied exceptions to what constitutes "infringement" of the right to keep and bear arms under the Amendment.  As was discussed in the Heller oral argument, in pre-framing Anglo-American law the right to possess arms was often denied to certain classes of people.  The example of this that most immediately leaps to my mind is the limitation of the right to own arms in the English Bill of Rights to Protestants; in the immediate aftermath of the Glorious Revolution denying Catholic Englishmen the right to own arms was just fine by Parliament.   More directly importantly for application of the Second Amendment, pre-enactment English law (as collected by Blackstone) assumed that government could make reasonably bar limited classes of people from owning arms without "infringing" on the general right to own arms.  Thus, regulations that, for instance, prevent violent felons or the severely mental ill from owning firearms do not infringe on the constitutional right to possess arms.  (n2)

The danger with recognizing the "certain classes of people" implied exception to the Second Amendment is the same with any implied exception: that the scope of the exception will be defined so broadly as to greatly shrink or essentially destroy the scope of the general right.  One may answering this by offering that only "reasonable" class-of-owner limitations are constitutional.  But of course "reasonable" is a term much abused in American law.  I think a more useful formulation is that governments in the U.S. (n3) may implement narrowly tailored regulations to keep firearms from classes of persons who may be unusually likely, relative to the overall population, to use firearms to endanger themselves or others.  The keys to that standard are the narrow tailoring requirement and the "unusually likely" provision; while governments may ban limited groups (such as felons or the insane) from owning firearms they may not prohibit vast swaths of population from owing arms based on a generalized public safety justification.

Finally, regulations are permissible under the Second Amendment if they reasonably restrict the purchase, storage, or carrying of arms.  Here, we face some quite tough problems in applying the Second Amendment.  The is little doubt from the pre-enactment history of Anglo-American law that governments imposed many and various restrictions on the how firearms could be acquired, kept, and used and that such restrictions were not viewed as infringing the general right to possess arms.  Thus, we have another implied exception to the Second Amendment for such regulations, and also the problem of outlining that exception in a way that is sufficiently limited so as not to swallow the general right.

We may use "reasonableness" again, but again defining reasonableness is a problem.  Indeed, it is much harder problem here that the one discussed above because of the vastly different kinds of firearm regulations that U.S. governments have imposed that fall within this third category.  How, for instance, does one delineate a standard  that can assess the reasonableness of both a prohibition against carrying concealed firearms in public places and a requirement that all gun owners store their firearms with trigger locks in place?  The best answer to that, I think, begins from the recognition that imposing temporary delays or mild inconveniences on the possession of firearms is quite different from banning ownership of firearms.  Governments do have legitimate interests in preventing gun accidents, protecting public safety, and the like, and regulations that pursue those aims without imposing a ban or de facto ban on the ownership of arms are permissible.  Admittedly, this is an imperfect test.  But probably about as good of one that can be applied to all of the types of "purchase, storage, carry" regulations that are out there.  Moreover, remember that in undertaking analysis of particular gun regulations courts would be able to analogize to specific gun regulations that were clearly permitted or considered verboten in pre-Second Amendment Anglo-American as an interpretive aid.

With all of the above being said, we come to the validity of the actual gun regulations at issue in Heller:  D.C.'s ban of the ownership of handguns and its requirement that rifles and shotguns either be stored with trigger locks in place or in a way that makes them immediately inoperable (eg. disassembled).  I think both questions, assessed under the standards outlined above, are actually fairly easy. If the Second Amendment is to have any bite at all, a categorical ban on the possession of handguns cannot be considered a reasonable "purchase, storage, carry" regulation.  On the other hand, from what I know of the trigger lock provisions in question I think they ought to be largely or entirely upheld.  If indeed gun owners have the option of locking their weapons with inexpensive devices that can be removed in a matter of seconds it is difficult to see how that the requirement is equivalent to a de facto ban on ownership.  In my view, the major difficulties the Court faces in Heller relate to beginning to discern the broad standards that should be applied in Second Amendment cases, not to actual application to the facts at hand.

It must be admitted, however, that many future cases brought under the Amendment will be pose problems that require more intensive parsing of facts.  I am particularly thinking of cases addressing the validity of laws that prohibit possessing firearms that have certain types of functionality.  The man-portable machine guns mentioned above are one example.  As discussed,  I'm sure these would not be considered arms within the meaning of the Second Amendment (and thus could be banned).  But what about semi-automatic "assault rifles" (so-called) like those banned during the Clinton administration?  What about, perhaps, even full automatic rifles?  These would present closer questions than the D.C. regulations now at issue, and it will be very interesting to watch courts answer them. (n4)

For now, however, as the Chief Justice pointed out in the Heller argument perhaps we should stick at least somewhat close to addressing the case at hand.  In the interest of not dragging this piece out any longer (and of not turning from offering tentative views to offering ill-though tout views) I shall leave it at that for now.

 

n1:  I refer to "possession," "ownership," and "keeping and bearing" arms interchangeably here. 

n2:  This sort of implied exception to a right is recognized regarding many protections contained in our Bill of Rights (as was mentioned in the Heller argument, think of the implied exception for libel to the First Amendment's protections).

n3:  I use "governments in the U.S." because although Heller only concerns federal regulations the protections contained in the Second Amendment will almost certain be incorporated to the states (and, by extension, localities) if the Court concludes in Heller that the Amendment offers has any significant force at all.

n4:  Of course, the main reason that the Solicitor General does not fully support affirming the D.C. Circuit's opinion in the case is that the Administration fears that the lower court's reasoning, if entirely adopted by the Supreme Court, might call into question the validity of federal prohibitions against buying machine guns.

I Haven't Forgotten About Heller

The second part of my analysis of how the Court should decide Heller (aka the D.C. guns case) is almost ready for posting.  What I first started last week as a shorter follow up to Part One is clocking in at about 1,200 words right now.  It will be up tonight or tomorrow.

That brings me to my new poll question: what do you think of the longer (let's say, +500 words) pieces on this blog.  Consider this a chance to influence how I'll run this blog going forward, meaning whether I'll continue my current mix of content, go with fewer long pieces and more posts, or go with more long pieces and fewer total posts.

By the way, FYI in the poll recently closed 60 percent of respondents thought that the Court should strike down some of the gun regs at issue in Heller and uphold others (presumably the trigger lock requirements), while 40 percent thought that the Court should declare them all unconstitutional.

Another Reason to Like the New AG

This week, new Attorney General Michael Mukasey, upholding a tradition that had been neglected by his last two predecessors, argued a case before the Supreme Court.  A review of his performance (in U.S. v. Ressam) can be found here; the transcript of the argument can be found here.

A Bit About Medellin v. Texas

On Tuesday, the Supreme Court handed down its decision in Medellin v. Texas.  The case presented some interesting questions about the interpretation of treaties and (more directly relating to the proposes of this blog) presidential powers to implement U.S. treaty obligations.

In 1993, José Ernesto Medellín was arrested and charged with a brutal rape and murder in Texas.  Police informed Medellin of his rights under the Constitution but did not tell him about his right, under the Vienna Convention, to speak with a Mexican consular officer.  Medellin was convicted and sentenced to death, and his direct appeals were denied.  Medellin then filed a state habeas corpus motion, which was denied because Medellin had failed to raise an objection to this procedural breach at trial or on direct review.  That judgment was affirmed by the Texas Criminal Court of Appeals. 

However, in 2004 the International Court of Justice (often known as the world court) decided in Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.) that the United States had violated the Vienna Convention rights of Medellin and 50 other Mexican nationals.  The ICJ ordered the U.S. "to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [affected] Mexican nationals," without regard to state procedural default rules.  In 2005, President Bush issued a memorandum to the Attorney General purporting to require state courts to comply with the Avena decision.* 

Medellin then filed another habeas petition in Texas, based on the ICJ Avena decision and the President's Memorandum.  The Texas courts concluded that neither was binding on state courts and rejected the petition. 

The Supreme Court granted cert. in Medellin to answer two questions: whether the ICJ judgment in Avena bound state courts by its own effect, and if not, whether the President's Memorandum made Avena binding.  On Tuesday a 6-3 majority of the Court answered both questions in the negative.

The Court's conclusion on the first issue is actually a fairly straightforward bit of treaty interpretation (though it  required a quite lengthy chunk of discussion to explain).  The majority (with Chief Justice Roberts writing) concluded that, by the terms of the treaty provisions creating the ICJ process and the Vienna Convention consular access right  ICJ decisions on the subject are not "self-executing."  This simply means that the protections granted by the Vienna Convention must be implemented by further legislative and regulatory actions, and thus are not directly and immediately binding on state and federal courts.

The more interesting (in my view) aspect of the case is the majority's conclusion that President Bush lacked the power to order state courts to comply with Avena.  The Solicitor General offered two justifications for the President's authority to do so.  First, the President was acting within his powers to implement U.S. treaty obligations and Congress acquiesced in his use of those powers.  Second, the President had authority under an international dispute-resolution power to require state courts to apply Avena.

Although the majority analyzed the Administration's first argument through an application of Justice Jackson's tripartite Youngstown presidential powers framework, the essence of the majority's position is that the President cannot implement non-self-executing treaties by his own fiat.  A key passage:

The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress.  As this Court has explained, when treaty stipulations are “not self-executing they can only be enforced pursuant to legislation to carry them into effect.”  Moreover, “[u]ntil such act shall be passed, the Court is not at liberty to disregard the existing laws on the subject.”  The requirement that Congress, rather than the President implement a non-self-executing treaty derives from the text of the Constitution, which divides the treaty-making power between the President and the Senate.

(Citations omitted.) The majority then dispensed with the Administration's second argument, concluding that the President's international dispute-resolution powers (which have questionably been rooted in the "gloss" of Congressional acceptance) are too narrow to apply in cases such as Medellin.

(Medellin offered a third argument on the question: that the President had the power under the "take care" clause (ie. his duty to take care that laws are faithfully executed), which the Court summarily rejected.)

NRO says that Medellin "is one of the most important international law cases in [the Court's] history."  I'm not completely sure about that, but the case does seem to offer two important take-away points.  First, the majority has, perhaps, announced a tighter standard for determining whether a treaty obligation is self-executing or non-self-executing, with the presumption (perhaps a strong presumption) being that such obligations are non-self-executing.  Second, the Court has restated, in very strong terms, the proposition that the President, in the absence of a grant of authority by Congress, lacks the power to enforce treaty obligations that are not self-executing though judicially-binding mandates.  Although the majority took pains to (in a footnote) state that it was only deciding the case before it, it's hard to see how the Court could find many, or even any, exceptions to that proposition in the future while remaining faithful to this case.

Finally, though it is much less important than the substantive legal implications outlined above, I was taken by the fact that Chief Justice Roberts's majority opinion is more harsh toward the dissenters (Justice Breyer, joined by Justices Ginsburg and Souter) than any of his prior opinions that I can recall.  Here, for instance, is one of a great  number of shots at Justice Breyer and cohorts:

The dissent faults our analysis because it “looks for the wrong thing (explicit textual expression about self-execution) using the wrong standard (clarity) in the wrong place (the treaty language).”  Given our obligation to interpret treaty provisions to determine whether they are self-executing, we have to confess that we do think it rather important to look to the treaty language to see what it has to say about the issue. That is after all what the Senate looks to in deciding whether to approve the treaty.  The interpretive approach employed by the Court today—resorting to the text—is hardly novel.

From Chief Justice Roberts, that demonstrates an almost Scaliaesqe level of dismissiveness.

 

* I have included only a fairly cursory explanation of the procedural history of the case here.

Good for Fox

From today's Washington Post:

In an unusually aggressive step, Fox Broadcasting yesterday refused to pay a $91,000 indecency fine levied by the Federal Communications Commission for an episode of a long-canceled reality television show, even as the network fights two other indecency fines in the Supreme Court.

The FCC proposed fining all 169 Fox-owned and affiliate stations a total of $1.2 million in 2004 for airing a 2003 episode of "Married by America," which featured digitally obscured nudity and whipped-cream-covered strippers.

Fox appealed immediately after the FCC ruling. Last month -- four years later -- the FCC changed its mind, saying it would fine only the 13 Fox stations located in cities that generated viewer complaints about the program. That reduced the fine to $91,000.

Despite the sharp reduction, Fox said it would not pay the fine on principle, calling it "arbitrary and capricious, inconsistent with precedent, and patently unconstitutional" in a statement released yesterday.

We've seen President Bush's FCC take a markedly more aggressive (in my view, unconstitutionally aggressive) approach to regulating "indecent" speech, but the legal tide appears to have recently turned against the agency.  A bit late, but still welcome.

A Bizarre Endorsement

If you were reading NRO during the GOP primary contest this year you may have come across an article or two from GOP lawyer Douglas Kmiec.  He was a prominently featured supporter of Romney, asserting (in an unenviable square-off with Steven Calabresi) that Romney was a better choice for originalists than McCain.  Well, with Romney long out of the race Kmiec has finally come around and made a replacement endorsement:

Today I endorse Barack Obama for president of the United States. I believe him to be a person of integrity, intelligence, and genuine good will. I take him at his word that he wants to move the nation beyond its religious and racial divides and that he wants to return the United States to that company of nations committed to human rights.

Perhaps most odd is that Kmiec basically admits that a President Obama would be a strong opponent of conservatism and originalism:

As a Republican, I strongly wish to preserve traditional marriage not as a suspicion or denigration of my homosexual friends but as recognition of the significance of the procreative family as a building block of society. As a Republican and as a Catholic, I believe life begins at conception, and it is important for every life to be given sustenance and encouragement. As a Republican, I strongly believe that the Supreme Court of the United States must be fully dedicated to the rule of law and to the employ of a consistent method of interpretation that keeps the court within its limited judicial role. As a Republican, I believe problems are best resolved closest to their source and that we should never arrogate to a higher level of government that which can be more effectively and efficiently resolved below. As a Republican and a constitutional lawyer, I believe religious freedom does not mean religious separation or mindless exclusion from the public square.

In various ways, Sen. Barack Obama and I may disagree on aspects of these important fundamentals, but I am convinced, based upon his public pronouncements and his personal writing, that on each of these questions he is not closed to understanding opposing points of view and, as best as it is humanly possible, he will respect and accommodate them.

Now, Kmiec's endorsement is actually not much of a surprise: he's been saying some bizarre things on the net about Obama in the last couple of months.  Still, it's difficult to understand how a man who didn't support McCain because he was (allegedly) insufficiently committed to appointing originalist judges could now endorse Obama, and his post offers little justification (other than his entirely lame and milquetoast "he is not closed to understanding opposing points of view" comment) on the matter.

George Will Goes Too Far

I'm on the record as being a huge fan of George Will, but even he gets an issue remarkably wrong sometimes.  A good example of that came this week.  In a column published Thursday Will described how one small business owner in Pinal County, Arizona has been tormented by entirely irrational and increasingly onerous local regulations.  Near the end of his column, Will offers this thought:

The 14th Amendment's guarantees of equal protection and due process of law should mean that government may interfere with a citizen's economic liberty only to promote important government interests that cannot be advanced through less restrictive means. Under today's weak "rational basis" standard, courts validate virtually any abridgement of economic liberty, no matter how tenuous the connection to even a minor public purpose. Conservatives, note well: Restoring economic liberty requires a kind of judicial activism -- judges judging rather than merely ratifying government's caprices.

Although I loath idiotic economic regulations as much as the next one, I cannot agree with the notion that the due process and equal protection clauses in the 14th Amendment protect a generalized right to economic liberty, for reasons that have been set forth by lots and lots of originalist thinkers.  Will doesn't offer a counter to this conventional originalist wisdom (understandably, considering the space limitations),  but unless he is basing his position on evidence and reasoning that are much more powerful than what we've seen yet on the matter I doubt he would have convinced many had he done so.

By the way, I still maintain that, in the long run, it is impossible to have cases like Lochner without also having cases like Roe, and vise versa.  Both free-market libertarian originalists and living constitutionalists ignore that to ultimate peril of their views.

West Virginia in the News, Yet Again

An AP story from Saturday details why the owners of the historic mental hospital facility in Weston, WV (closed in 1994) have changed the National Historic Landmark's name to "The Trans-Allegheny Lunatic Asylum."  If that were the extent of what the new owners had done, the story would hardly be worth noting.  But, of course, this is West Virginia:

But others say the new owners of the massive Gothic Revival hospital have gone too far, disparaging the suffering of former patients and reopening wounds with planned events like "Psyco (sic) Path" dirt bike races on the grounds.

The owners (a family from Morgantown, to the discredit of my hometown) also plan to hold year-round "'mud bog' races, in which trucks try to speed through a pit without getting stuck," on the historic property.

(Insert your own white trash joke here.)

Overshadowed

Although the big news from SCOTUS this week, was, of course, the Heller argument, the Court also handed down decisions in two constitutional cases.  In Snyder v. Louisiana, the Court found (in an opinion by Justice Alito) that a state trial court had committed clear error in rejecting a defense Batson challenge to the prosecution's use of a preemptory strike on a black prospective juror.  In Washington State Grange v. Washington State Republican Party, the Court upheld (in an opinion by Justice Thomas) against a facial First Amendment challenge (focusing on the associational rights of political parties) a Washington primary scheme that allows candidates to designate their "party preference" on the ballot and that advances the top two vote winners for an office, regardless of party designation, to the general election.

Synder is somewhat interesting because it basically mandates that a trial judge who, in applying the process* for determining whether a prosecutor has used a preemptory strike based on the race of a prospective juror, believes the prosecutor's stated non-discriminatory grounds must articulate on the record why he believes the prosecutor.  That's not a terribly burdensome new legal requirement, but I wonder how many trial judges across the nation tend to reject Batson challenges without much explanation.

(By the way, Synder was the case where the prosecutor made  remarks comparing that case to the O.J. Simpson case.  Alas, because of the way the Court decided the case it didn't need to discuss that factor.)

As for Washington State Grange, I might say more about it after I read the opinion over the weekend.  Or perhaps not.  From a skim of syllabus it looks rather dull.

 

*  "First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, in light of the parties’ submissions, the trial court must determine whether the defendant has [proven] purposeful discrimination."