The Courts and the Second Amendment

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In 2008, the Supreme Court started a new era of second amendment jurisprudence.

This is no exaggeration. When the Heller opinion was published (District of Columbia v. Heller, 554 U.S. 570 [2008]), I was surprised to learn that the Court had never decided whether the Second Amendment gave individuals (as opposed to collectives, such as militias) any right to keep or carry firearms. That had been an open question. So, Heller was a big deal, and the justices knew it. The case opened a can of worms — hundreds of plaintiffs would try to wriggle out of states’ prohibitions on the possession and carrying of guns. However, the case said very little about the extent of the right or how it could be limited by law.

In restricting private ownership, possession, and use of guns, the D.C. laws went almost as far as imaginable without imposing a complete ban.

How could a legal opinion say so much and so little at the same time? It was the factual context of the decision that made this possible. When I was in law school I heard the maxim “hard cases make bad law,” meaning that cases of extraordinarily sympathetic circumstances (think widows and orphans) might motivate a lawmaker or judge to create a rule that had bad unintended consequences when applied generally. I think that the majority in Heller saw the case as sort of the opposite: an easy case to make good law. The plaintiff was challenging the laws of the District of Columbia. In restricting private ownership, possession, and use of guns, the D.C. laws went almost as far as imaginable without imposing a complete ban. Private ownership of handguns was banned. Rifles and shotguns might be kept at home but locked or disassembled, in other words, not useful in an emergency.

Finding an individual right in the Second Amendment was a big step. But if you wanted to make that big step as small as possible, the facts behind Heller were just about perfect.

What Heller said was that the Second Amendment gave the plaintiff some kind of individual, civil right, and that right was enough to invalidate D.C.’s heavy restrictions. It was a very limited application of an individual right. Even so, the opinion, a 5–4 split of the Court, drew sharp criticism from the dissenting minority and also from some very good scholars, including Richard Posner, generally thought to be a conservative from the “law & economics” school of jurisprudence. Critics accused the conservative majority of being unprincipled by practicing judicial activism instead of the restraint they often championed.

How far do the rights established in Heller go? What other restrictions on guns might be unconstitutional? Nobody knows. The individual right may be very modestly interpreted. Maybe every other gun law in the country is still constitutionally permitted.

Heller must mean a little bit more than sitting in your bedroom with a shotgun. Eventually, starkly contrasting circuit court cases will force the Supreme Court to say more.

The lower courts and the circuit courts of appeal have had to deal with Heller many, many times. The appeal of California’s Peruta case (Peruta v. County of San Diego, 824 F.3d 919 [9th Cir. 2016] [en banc]) gave the Supreme Court an interesting opportunity to apply Heller. In Peruta, the Ninth Circuit said that the Constitution does not give individuals any right to carry concealed firearms. In California, concealed carry requires a license, granted only for “good cause.” Licenses are rarely and, the plaintiffs would say, arbitrarily granted. Also, open carry is generally banned, by California Assembly Bill No. 144. The Ninth Circuit explicitly declined to say whether banning open carry was constitutional. Therefore, Peruta presents a nice little web of questions. Can all public carry be banned? Maybe. Heller was about keeping guns at home. But its principles seem to go much farther, once this is determined to be an individual right: “the right of the people to keep and bear Arms, shall not be infringed.” Can concealed carry be banned when open carry is permitted? Can open carry be banned when concealed carry is permitted? Can open carry be banned while concealed carry is extremely limited (the current law in California)?

We know that the Supreme Court does not want to answer any of these questions right now, because on June 26 it declined to hear the appeal. That means fewer than four justices voted to take the case. It does not mean they agree with the Ninth Circuit or that they disagree.

I guess that, if forced to decide, the Court would find something wrong with California’s restrictions. Heller must mean a little bit more than sitting in your bedroom with a shotgun. Eventually, starkly contrasting circuit court cases will force the Supreme Court to say more. For now, outside of a few states like California, the political battle for gun rights is way ahead of the courts. All but about 15 states have either “shall issue” licensing or no license requirement at all for the concealed carry of handguns.




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Comments

FrankInFL

The plain fact is that the 2nd amendment gave us nothing. Rights don't come to us from Constitutions or governments. The 2nd has always been a prohibition of government impairing a right which has existed, for each of us, from birth.

Kurt

Once the Supreme Court has found that the right is individual (as they should), the next step would seem to be consideration of the words "shall not be infringed".

That's pretty strong language, and they're going to have to put on some very heavy blinders in order to ignore it.

Kurt

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