by Dave Kopel
Does the Second Amendment protect anything other than the right to possess a handgun in the home? When anti-gun laws are challenged in court, should judges uphold repressive ordinances such as the District of Columbia’s gun-licensing scheme that forces applicants to spend hundreds of dollars and dozens of hours simply to buy an ordinary rifle?
These are the questions being debated right now in cases backed by the National Rifle Association. What answers the courts will provide are far from certain—ultimately, the answers will depend on whether or not the next generation of federal judges is appointed by a president who values the Second Amendment or one who does not.
When considering the constitutionality of any law, judges use a variety of doctrinal tools. What tools they choose will often determine the result of a case. So let’s take a look at the constitutional toolbox.
When faced with a constitutional case, the first question a judge has to decide is whether the conduct at issue is part of a constitutional right. For example, the First Amendment declares that “Congress shall make no law … abridging the freedom of speech, or of the press.” Does that mean that Congress can pass no laws about anything a person might say?
Not at all. Suppose a group of individuals formulate a conspiracy to rob a U.S. Postal Service truck. They create the conspiracy by talking with each other—by engaging in speech. Now suppose they are caught and criminally prosecuted for violating a federal statute that punishes those conspiring to interfere with the u.s. mail. If the conspirators tried to raise a First Amendment defense, they would lose.
The court would explain that even though the conspiracy involved saying words out loud (“speech”), the First Amendment does not protect everything that a person says. Rather, the amendment protects “the freedom of speech,” and conspiracies to commit violent crimes are not recognized as free speech.
In a Second Amendment case, the judge must likewise decide whether the conduct even involves the Second Amendment Right to Keep and Bear Arms. A few cases are easy: Possessing a handgun in the home for self-defense is part of the Second Amendment, because that was the particular conduct at issue in the 2008 case District of Columbia v. Heller, and the Supreme Court ruled 5-4 that Dick Heller did have a Second Amendment right to own a handgun for self-defense.
Conversely, if a person wanted to own his own battle tank and corresponding live ammunition, a court would certainly rule that the person has no Second Amendment right to do so. The Second Amendment’s language of “Keep and Bear Arms” implies that the amendment protects arms that a person can “bear,” or carry. A tank bears the user, not vice versa, so tank ownership is not part of the Second Amendment.
Now for the harder cases: What if a person wants to possess a rifle or shotgun for home defense? What about carrying a handgun outside the home for protection? What if the person wants a gun for something other than home defense—such as target shooting, hunting or collecting? What about air guns? Knives, swords or bows? Electronic devices such as Tasers? Chemical self-defense sprays? Are any or all of these protected under the scope of the Second Amendment?
There is much language in the Supreme Court decisions in Heller and McDonald v. Chicago (2010) suggesting that the answer to all these questions is “yes.” However, at this time the Supreme Court has not ruled on a case directly presenting such issues.
Thus, some lower courts, or other government entities, now acknowledge a Second Amendment right that only goes as far as the precise issues in Heller and McDonald (handguns for home defense) and not one inch further. For example, some courts have refused to recognize the right to carry outside of the home.
Once an activity is acknowledged as being within the scope of a constitutional right, does that mean that any restrictions on the right are unconstitutional? Definitely not. Courts use several tests, or “standards of review,” to determine if something violates a right. Which tests are used depends on the particular right, and how close something is to the core of that right.
Artistic expression is considered part of the core of the First Amendment. Suppose a city council outlaws any performance of Shakespeare’s Romeo and Juliet, claiming the ban is needed because the play involves teenage suicide and the council is worried that the play might inspire copycat suicides by the audience.
Based on the Supreme Court’s past decisions, because the ban is a content-based restriction on speech, the court would apply the standard of “strict scrutiny.” To pass strict scrutiny, a law must involve a “compelling state interest,” and must be “necessary” to that interest. “Necessary” means that the law is “narrowly tailored” and there is no “less restrictive alternative.”
A court would likely conclude that preventing teenage suicide is certainly a “compelling state interest.” In the context of gun control laws, the prevention of homicides and other violent crimes would be a compelling state interest.
But the Romeo and Juliet ban would not be “necessary.” The law prohibits anyone, not just at-risk teenagers, from seeing the play, so the ban is not “narrowly tailored.” Further, the ban is not the “least restrictive alternative.” Instead of forbidding the play, the city council could provide funding for suicide prevention programs, distribute anti-suicide pamphlets and so on.
Not all First Amendment restrictions get strict scrutiny. Commercial speech receives less protection than political, artistic or scientific speech. So a restriction on product advertising would be subject to “intermediate scrutiny”: does the law protect an “important” government interest, and is there a “substantial” relationship between the law and the interest? For intermediate scrutiny, there is no requirement for narrow tailoring or less restrictive alternatives.
As for laws where no constitutional right is involved (e.g., conspiracy to rob mail trucks), there is the lowest standard of review: “rational basis.” The law must support a “legitimate” government interest, and the law must have a “rational” relation to that interest. Almost any law can pass the rational basis test.
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