July 11, 2016

Several recent decisions have attempted to make sense of the Supreme Court’s reading of the Second Amendment, which states: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The list below is far from exhaustive, but it illustrates the problem.

Based on District of Columbia v. Heller, the Amendment might protect "the individual right to possess and carry weapons in case of confrontation" (although "we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation"), or "the right of law-abiding, responsible citizens to use arms in defense of hearth and home," or — the actual holding — the right to "handguns held and used for self-defense in the home."

McDonald v. Chicago, which applied the Second Amendment to the states, initially recited that, under Heller, the Amendment preserved "the right to keep and bear arms for the purpose of self-defense," but later decided that Heller had found "a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home." That was only the beginning of the attempts to interpret the Heller majority opinion, which said many things, not all of them consistent, clear or sensible. Heller and its progeny demonstrate that verbosity is an enemy of precision, to say nothing of good results.

A. In Friedman v. Highland Park (12/7/2015), the plaintiff challenged a city ordinance which bans manufacturing, selling or possessing semiautomatic firearms. The lower courts upheld the ordinance and the Supreme Court declined review. A dissent by Justices Thomas and Scalia complained that "the Seventh Circuit limited Heller to its facts, and read Heller to forbid only total bans on handguns used for self-defense in the home." That sounds as if the Court of Appeals applied that decision exactly as it should have, ignoring the looser formulas.

However, the Court of Appeals’ opinion doesn’t match its holding. Its test for the constitutionality of bans on firearms is "whether a regulation bans weapons that were common at the time of ratification or those that have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia,’ . . . and whether law-abiding citizens retain adequate means of self-defense."

The Court of Appeals held that the second part of its test was satisfied: "If criminals can find substitutes for banned assault weapons, then so can law-abiding homeowners." That rather strange finding, combined with the language of the second part of the test (adequate means of self-defense), leaves open allowing weapons other than handguns, and allowing them "for self defense," thus perhaps also extending the right beyond the home. The Seventh Circuit can be forgiven for that bit of confusion, as Heller, weaving its way toward its holding, spoke, as noted above, of "the individual right to possess and carry weapons in case of confrontation."

The first part of the Court of Appeals’ test, not illogically, nods toward the language of the Amendment. However, Heller rejected any limitation related to military use. As the Supreme Court dissent in Friedman put it: "The right to keep and bear arms is an independent, individual right. Its scope is defined not by what the militia needs, but by what private citizens commonly possess." That makes little sense, but it seems to be where we are.

The Supreme Court dissent claimed that Heller "excluded from protection only ‘those weapons not typically possessed by law-abiding citizens for lawful purposes.’" That inverts the test. Heller said this: "We therefore read [United States v.] Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes. . . ." That does not state that only such weapons may be banned.

B. In Kolbe v. Hogan (2/4/16), the Court of Appeals for the Fourth Circuit was concerned primarily with the standard of scrutiny to be employed by a district court in evaluating a challenge to a gun-control law. However, along the way numerous comments were made about the scope of the Second Amendment right. The Court summarized the issue as follows: "In April 2013, Maryland passed the Firearm Safety Act ("FSA"), which, among other things, bans law-abiding citizens . . . from possessing the vast majority of semi-automatic rifles commonly kept by several million American citizens for defending their families and homes and other lawful purposes." Plaintiffs challenged the FSA, contending that the ‘assault weapons’ ban was invalid under the Second Amendment.

The majority opinion adopted one of the Heller formulas, finding that the "core protection of the Second Amendment [is] the right of law-abiding responsible citizens to use arms in defense of hearth and home’." That is broader than the Heller holding, in that it substitutes "arms" for "handguns," but narrower in that it limits the right to "law-abiding responsible citizens." The broadening was useful to the majority, as they were in the process of bringing semiautomatic rifles under the Amendment.

The court recited, following Heller, that "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes . . . ." "Accordingly," it concluded, "the Second Amendment extends only to those weapons "typically possessed by law-abiding citizens for lawful purposes." As in the dissent in Friedman, this seemed to be converted into a rule that all weapons so possesed are protected, for it continued, "Heller . . . looked to present-day use to assess whether handguns are in common use (and consequently protected)." The Court of Appeals had "little difficulty in concluding that the banned semi-automatic rifles are in common use by law-abiding citizens," and "determined that the Second Amendment covers the prohibited semi-automatic rifles . . . ."

The state, in opposition, had argued that "even if ownership of the prohibited weapons . . . is common, nothing in the record reflects that these weapons are commonly used for self-defense," but to no avail. According to the court, the "proper standard under Heller is whether the prohibited weapons . . . are ‘typically possessed by law-abiding citizens for lawful purposes’ as a matter of history and tradition, . . ." Under Heller, "Second Amendment rights do not depend on how often the semi-automatic rifles . . . are actually used to repel an intruder." The court added, "We find nothing in the record demonstrating that law-abiding citizens have been historically prohibited from possessing semi-automatic rifles." So, unless they have been prohibited before the subject law was passed, they have, in effect, been grandfathered into the Second Amendment.

Heller had referred to and approved "the historical tradition of prohibiting the carrying of dangerous and unusual weapons." Restating that test somewhat, the state argued that "the banned semi-automatic rifles are ‘unusually dangerous’ and therefore do not fall within the ambit of the Second Amendment." Nice try. The court responded: "In distinguishing between protected and unprotected weapons, Heller focused on whether the weapons were typically or commonly possessed, not whether they reached or exceeded some undefined level of dangerousness." So, again, once something becomes widespread enough to be "usual," it can’t be banned.

The dissent argued that the long guns in question are not as commonly possessed as the majority claimed, and especially that they are nor commonly used in defense of the home, but that factual argument doesn’t reach the fallacy of the test. However, the dissent also addressed that fallacy by quoting an apt observation in Friedman v. Highland Park: "relying on how common a weapon is at the time of litigation would be circular . . . . Machine guns aren’t commonly owned for lawful purposes today because they are illegal; semi-automatic weapons with large-capacity magazines are owned more commonly because, until recently (in some jurisdictions), they have been legal. Yet it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning it, so that it isn’t commonly owned. A law’s existence can’t be the source of its own constitutional validity."

C. In Caetano v. Massachusetts, (3/21/2016), the Supreme Court overturned a Massachusetts decision which had upheld a state law banning possession of a stun gun. The state court’s rationale was that stun guns were unknown at the time the Second Amendment was adopted, and that they were not suitable as military weapons. The Supreme Court, in a per curiam opinion, reversed. As to the latter point, it pointed to Heller’s rejection of the proposition "that only those weapons useful in warfare are protected." As to the former, it referred to "Heller's clear statement that the Second Amendment "extends . . . to . . . arms . . . that were not in existence at the time of the founding." Heller in fact wasn’t altogether clear on that point, stating twice that the weapons protected were those "in common use at the time," the time presumably being the eighteenth century. However, the official position now seems to be as stated in Caetano.

D. In Peruta v. County of San Diego (6/9/2016), plaintiffs challenged denial of permits to carry concealed weapons, claiming infringement of Second Amendment rights. District Courts dismissed their claims, but a panel of the Court of Appeals for the Ninth Circuit reversed. On review en banc, the full Ninth Circuit court upheld the dismissals.

The majority en banc opinion noted Heller’s observation "that the Second Amendment has not been generally understood to protect the right to carry concealed firearms." It concurred emphatically after a long review of English and American legal history, concluding: "The right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment." It added: "We do not reach the question whether the Second Amendment protects some ability to carry firearms in public, such as open carry. That question was left open by the Supreme Court in Heller, and we have no need to answer it here."

The en banc dissent relied on broad statements in the leading cases. "Heller and McDonald . . . instruct that the right to bear arms exists outside the home." They do this by stating that "the Second Amendment secures ‘an individual right protecting against both public and private violence,’ indicating that the right extends in some form to locations where a person might become exposed to public or private violence."

In Heller, according to the dissent, "the Supreme Court held that the Second Amendment codified an existing individual right to keep and bear arms for self-defense." Heller did say that, more or less. The dissent continued: McDonald "held that the individual right to bear arms for self-defense under the Second Amendment was fundamental and applied to the states. Although these opinions specifically address firearms in the home, any fair reading of Heller and McDonald compels the conclusion that the right to keep and bear arms extends beyond one’s front door." That conclusion was "compelled" by the assortment of loose comments in those opinions. Heller, it said, "reinforced this view by noting that the need for the right is ‘most acute’ in the home, . . . thus implying that the right exists outside the home." It added: "See also McDonald . . . ("[T]he Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home."). They do say that.

The dissent noted that "while the [Supreme] Court enumerated four presumptively lawful ‘longstanding prohibitions,’ it did not list prohibitions of concealed weapons as one of them." It also said that its list was not exhaustive.

A major issue for the dissent was that California law prohibited open-carry. Combined with that, restrictions on concealed carry could not stand. Heller, it said, "further noted that a prohibition on carrying concealed handguns in conjunction with a prohibition of open carry of handguns would destroy the right to bear and carry arms." Actually in the passage cited, the Supreme Court referred to several state court cases, one of which might be so interpreted.

E. Voisine v. United States (6/20/16), involved a federal statute prohibiting any person convicted of a "misdemeanor crime of domestic violence" from possessing a firearm. The issue was whether a conviction for "recklessly assaulting a domestic relation," as opposed to doing so intentionally, fell under the statute. The Supreme Court held that it did. Justices Thomas and Sotomayor dissented on the issue of intention.

Thomas added a dissent on the ground that the decision intruded on the Second Amendment. He offered this summary of the law: "In District of Columbia v. Heller . . . , the Court held that the Amendment protects the right of all law-abiding citizens to keep and bear arms that are in common use for traditionally lawful purposes, including self-defense." That is roughly one of the dicta in Heller, but not its holding.

F. Hollis v. Lynch (6/30/16), decided by the Court of Appeals for the Fifth Circuit, concerned the constitutionality of a federal statute that makes possession of a machine gun unlawful. The plaintiff submitted an application to the Bureau of Alcohol, Tobacco, Firearms and Explosives to manufacture a "machine gun," actually an M-16 which, as it is capable of automatic fire, is classified under the statute as a machine gun. The ATF denied his application pursuant to the statute. Hollis sued, challenging the constitutionality of the statute. The District Court dismissed and the Court of Appeals affirmed.[43]

It reviewed the Supreme Court’s opinions, in greater detail than was necessary for its holding, but that review is interesting because it reprises the confusion. Here is the Fifth Circuit’s understanding of what the Court said in Heller:

The Amendment’s "main purpose was to ‘guarantee the individual right to possess and carry weapons in case of confrontation,’ which Heller later clarified to mean ‘an individual right to bear arms for defensive purposes’," citing two of the Supreme Court’s rhetorical flights. "Heller went on to hold that because the Second Amendment is about the defense of ‘hearth and home,’ and because "the American people have considered the handgun to be the quintessential self-defense weapon[,] . . . a complete prohibition of their use’ is invalid." That is, roughly, the holding; a prohibition on their use for self-defense in the home is invalid.

However, the Court of Appeals thought that "Heller’s reach goes beyond handguns . . . because ‘the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding’." Heller indeed contains that language; if we were to substitute it for the holding, it would remove many restrictions, including the statute in this case: a machine gun may be a bearable weapon, and the kind the plaintiff proposed to make would have been. Certainly hearth and home would be left far behind.

"Heller . . . distinguished between two classes of weapons: (1) those that are useful in the militia or military, and (2) those that are ‘possessed at home’ and are in ‘common use at the time for lawful purposes like self-defense’. The individual right protected by the Second Amendment applies only to the second category of weapons . . . ." That isn’t quite accurate. Heller referred to category (2) as being the weapons a militiaman would carry when called for duty, i.e., part of category (1). The following sentence, though, is correct: under Heller, "The Second Amendment does not create a right to possess a weapon solely because the weapon may be used in or is useful for militia or military service."

"In summary," the Court of Appeals said, "the Second Amendment protects an individual right to keep and bear arms in defense of hearth and home." Under Heller, handguns, not "arms," are protected. Two sentences later, the Court of Appeals added: "The Second Amendment protects the class of weapons that enable ‘citizens to use them for the core lawful purpose of self-defense’." Now we’ve possibly limited the range of protected "arms" to an undefined "class of weapons," but have removed the limitation of protecting the home.

The confusion continues.

_____________________

 
43. There actually were two related statutes involved, but one referred to the other, so the analysis would be the same if both were specified.