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Is Heller Hollow?

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Before Heller, many courts upheld all gun laws because they believed that ordinary citizens had no Second Amendment rights, and so a gun ban, or other harsh restriction, was proper because legislators could have had a “rational” belief that preventing ordinary citizens from having guns would reduce gun misuse.

For all of the three major standards of review (strict scrutiny, intermediate scrutiny and rational basis), there are variants, special situations and so on, but we’ll skip over those. In practice, intermediate scrutiny is the standard that gives judges the most discretion in deciding a case.

Notably, the Heller court did not formally announce a standard of review for Second Amendment cases, so lower courts have been figuring out the standard by drawing implications from Heller. Therefore, different judges have taken very different approaches.

In a follow-up case also involving Dick Heller, the NRA is funding a suit against D.C.’s post-Heller gun licensing laws, which are the most cumbersome in the United States. The Heller II suit also challenged D.C.’s ban on magazines holding more than 10 rounds, and on so-called “assault weapons”—a ban which outlaws hundreds of ordinary firearms.

Federal District Judge Ricardo Urbina upheld all the restrictions. He said that strict scrutiny did not apply to anything involving the Second Amendment. Intermediate scrutiny applied only for something related to armed defense of the home. Because D.C.’s intensely bureaucratic gun registration system limited the acquisition of firearms for home defense, intermediate scrutiny came into play. Judge Urbina ruled that the laws passed intermediate scrutiny since the D.C. Council had relied on evidence from the Brady Campaign that restrictive laws reduced gun crime.

As for so-called “assault weapons” and magazines holding more than 10 rounds, the judge ruled there was no constitutional protection at all. The case is currently on appeal to the U.S. Court of Appeals for the District of Columbia Circuit.

An entirely different approach was taken by the Seventh Circuit U.S. Court of Appeals, which hears federal appeals from Illinois, Indiana and Wisconsin. After losing the McDonald case, the Chicago City Council enacted a gun licensing law that required anyone who wished to own a gun to receive training at a target range. Then the city council prohibited the operation of any target range within city limits.

In Ezell v. Chicago, the Seventh Circuit ordered a preliminary injunction to stop enforcement of the range ban. The court decided that because home defense is the “core” of the Second Amendment right, training for home defense must be fairly close to the core. Thus, the standard of review for the range ban was what the court called “not quite” strict scrutiny. According to the Seventh Circuit, “The city must establish a close fit between the range ban and the actual public interests it serves, and also that the public’s interests are strong enough to justify so substantial an encumbrance on individual Second Amendment rights.”

The ban on target ranges failed this not-quite-strict-scrutiny test. As justification for the ban, Chicago’s lawyers said that places near where many gun owners congregate might be targets for robbery. Yet the city presented not a shred of evidence to substantiate its supposed fear.

The Chicago government also claimed to be worried about accidental injuries at ranges, but the court cited the NRA Range Source Book to show that there are ways to prevent accidents without banning ranges. Likewise, Chicago’s lawyers fretted that a business might set up a mobile target range inside a truck. The truck might not have sufficient hand-washing facilities, so there could be a risk of lead contamination for range users.

The Seventh Circuit recognized that Chicago’s purported reasons for the ban were obviously made up to justify the already-passed law, and did not justify substantially burdening a right so close to the Second Amendment’s core.

If other courts adopt the Ezell standards, then judicial protection of the Second Amendment will be fairly robust. However, if they follow the Heller II standards, then the Second Amendment will offer little practical protection except against handgun bans in the home.

While the three normal standards of review (strict/intermediate/rational) take care of many cases, there are some other standards of review. In the 1992 case Planned Parenthood v. Casey, the Supreme Court created a special standard for abortion. According to Planned Parenthood, there is no abortion right after fetal viability. Pre-viability, the standard asks whether the restriction is an “undue burden.” An “undue burden” means “a substantial obstacle in the path of” exercise of the right. That a law has the “effect of increasing the cost or decreasing the availability” does not necessarily mean that the law is an “undue burden.”

In the case of Nordyke v. King, the federal Ninth Circuit Court of Appeals, which encompasses the nine western states, adopted a variant of the undue burden test. The long-running Nordyke v. King case challenges the ban on gun shows on the county property of Alameda, Calif. In the latest iteration of Nordyke, the court held that only laws that posed a “substantial burden” on Second Amendment rights would receive a close look from the judiciary. The gun show ban was not a “substantial burden,” because even though it made buying guns more expensive, there were alternative places to purchase firearms, so the county’s ban did not prevent people from obtaining guns for self-defense.

Historically, two other standards for right-to-arms cases have been important for state courts interpreting state constitutions. These two could also be used by future courts analyzing the Second Amendment.

The “frustration” test asks whether a law “frustrates” the exercise of the Right to Keep and Bear Arms, or “perfects” the exercise of the right. The classic 19th century application of the test was to uphold bans on concealed carry. Courts reasoned that a ban on all defensive carry would “frustrate” the Right to Keep and Bear Arms. However, a law that allowed open carry but banned concealed carry would “perfect” the manner of exercising the right.

Especially in the latter part of the 20th century, many state courts used a “reasonableness” standard. How courts applied the standard varied tremendously. Some courts basically used “reasonable” as a synonym for “rational basis,” so that even complete bans on handguns could be upheld—as in the 1984 Illinois Supreme Court case Kalodimos v. Village of Morton Grove.

Other courts conducted a much more searching inquiry, and struck down laws that did not genuinely and realistically promote public safety, or which “unreasonably” infringed the right to arms.

The Brady Center has long been busy urging courts to use “reasonableness” for the Second Amendment. According to the Brady Center now, every possible gun control and gun prohibition is “reasonable” except for what Heller explicitly forbade (banning all handguns in the home).

Serious judicial protection of the Second Amendment is relatively new. Although state courts have nearly two centuries of experience protecting gun rights in state constitutions, many courts have ignored the Second Amendment until recently. Similarly, from 1791 until the 1930s, most courts did almost nothing to protect First Amendment rights.

In the 1930s, when courts became serious about the First Amendment, they had to work out many issues of legal doctrine. It took several decades for modern First Amendment doctrine to be clarified and relatively stabilized. A similar process for the Second Amendment is just beginning.

Whether the Second Amendment becomes a robust right, or a merely nominal one, will depend on what kind of judges rule on these cases. The development of Second Amendment doctrine could be killed in its infancy if President Barack Obama appoints a replacement for just one of the five justices that made up the Heller majority. Without even needing to overrule most of the Heller decision, an Obama-dominated Supreme Court could declare that Brady “reasonableness” is the rule for all Second Amendment cases.

Justice Stephen Breyer has already urged such a similar standard, which he describes as “interest-balancing.” In Heller, he fell just one vote short of a “reasonableness” standard that would have authorized handgun prohibition.

If a second Obama term materializes and he is able to appoint more Supreme Court justices, it’s quite likely that Breyer/Brady’s unreasonable “reasonableness” standard could become the law of the land.

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