In the aftermath of tragedy, America once again finds itself steeped in a debate about the nature and scope of certain foundational rights.
Our nation’s recent history has featured a series of cascading crises – from 9/11 to Sandy Hook to the Boston Marathon bombings. Throughout this period, our society has struggled with how to effectuate public safety within the context of our tradition of individual, constitutional liberties.
This tradition has come under increasing strain in our complex and interconnected world. Today, localized, violent acts can cause nationwide fear and disruption. Such events constitute undeniable tragedies, and in their wake the public has looked to its government for decisive action. In responding to these kinds of crisis events, officials have moved quickly to implement preventive security measures, and in doing so have sometimes targeted legal traditions that protect individual liberties, or constrain governmental conduct. Such events are occurring as this is being written, as the FBI attempts to stretch the boundaries of the public safety exception to the Miranda rule in its questioning of a suspect in the Boston bombing case.
As tragedy has pressed against the policy world, policymakers have pressed against many components of the Bill of Rights, including the Second Amendment. Since the massacre at Sandy Hook Elementary, legislatures have sought to curtail future violence through restrictions on firearms. Some of these proposals (such as Connecticut’s expanded assault weapons ban) have passed, while others have not gained political traction.
Like other constitutional rights, the Second Amendment has a core that must be protected, and outer margins that allows regulation. Unlike other rights, its case-law tradition is quite limited, and courts are still working toward a consensus about what its parameters might be.
In the context of recent legislative activity, it is important for Americans to arrive at a more nuanced understanding of the boundaries of the Second Amendment. Doing so will help the public discern policy responses that have a chance of reducing preventable violence, from those that infringe on guaranteed freedoms.
The right to keep and bear arms
This essay assumes the existence of an individual Second Amendment right to keep and bear some class of arms, and does not seek (in this limited space) to articulate the entire tradition of individual gun rights that stretches from the English Bill of Rights to William Blackstone to the Anti-Federalists, and beyond.
In brief, the Second Amendment functions much as its other companions in the Bill of Rights: It provides a bulwark against government intrusion into a specific area. At the same time, the amendment is somewhat unique in that the individual liberty set out in the amendment’s operative clause — “the right of the people to keep and bear arms shall not be infringed” — is combined with additional, “prefatory” language that relates to its utility in a militia context.
This additional text, however, does not negate the underlying individual guarantee. (Again, commentaries by Blackstone and early Americans describe a tradition of individual gun rights that extends to self-defense and other purposes.)
The Second Amendment’s militia clause speaks to concerns of the founding generation about possible oppression by the standing armies of a centralized government. Particularly for the Anti-Federalists who agitated for the adoption of a bill of rights, the remedy for such a concern was found in a privately armed population that could constitute a militia if so needed. In recent decades, however, the existence of this clause has given rise to claims that the amendment does not, in fact, protect any individual right, but only a state’s right to maintain a militia.
Due to scant Supreme Court guidance about the interpretation of the Second Amendment, legislatures were able to regulate firearms at their discretion for many years, without substantially confronting legal questions of individual rights. The 1994 assault weapons ban was enacted within such a context, for instance.
The creation of Second Amendment case law poses a unique challenge, in that abuse of the right can pose a tangible danger to public safety. For years, government officials have used this line of argumentation in hyperbolic fashion, in order to support curtailments on everything from speech rights to Fourth Amendment protections. In the case of the Second Amendment, though, actual injuries or death can result from a person abusing the right. This calls for an examination of public-safety claims as case law (and policy) is developed. At the same time, the prevention of future violence cannot be used as an excuse to undermine the entirety of the guarantee, as some have attempted to do with other rights in the past (think here of the military detention of Jose Padilla during the Bush administration.)
To determine what the broad parameters of Second Amendment rights are, it is important to understand where we stand with them today.
What kind of analysis applies?
The future scope of Second Amendment rights will hinge on the kind of analytical framework that is applied going forward. In evaluating matters of constitutional rights, multiple evaluative approaches are used, including strict scrutiny review, intermediate scrutiny review, and others.
Under our legal tradition, no constitutional right is limitless. Legal standards of review take this into consideration, and allow compelling governmental interests to limit the outer fringes of constitutional rights in certain instances.
Each standard of review provides a different framework, and different expectations. Strict scrutiny is frequently applied to First Amendment questions, while less rigorous tests have often been applied to Fourth Amendment matters. Strict scrutiny provides more robust protections, and is more frequently used to overturn government actions. Even so, some restrictions – even on speech activities – can survive strict scrutiny review.
In contrast, less rigorous standards have been frequently applied to Fourth Amendment matters. With an eye toward public safety, lesser levels of scrutiny have been used to constrain Fourth Amendment claims in the face of governmental needs. In practice, this has led to the development of a body of search and seizure jurisprudence that is less rigid than First Amendment case law. From a public-safety perspective, this provides operational flexibility. From a rights-based perspective, this can sometimes provide too much deference to governmental assertions.
What level of scrutiny, then, applies to Second Amendment matters? The Heller opinion held that the possession of a gun at home could survive any level of review, but did not articulate a standard for other matters going forward. Dicta in Heller indicated that many existing gun regulations might very well remain in place – including bans on the sale of guns to the mentally ill. For this purpose, either framework might conceivably apply. Such a regulation could constitute a “compelling interest” that could satisfy the high bar of strict scrutiny, but could also work within more deferential frameworks.
Despite the Supreme Court’s lack of specificity on this front, it seems evident that lower courts will continue to allow leeway for regulations that prevent known, dangerous persons from accessing firearms. The Tenth Circuit has already done this in United States v. Reese, a case that upheld a federal law prohibiting individuals subject to domestic protection orders from possessing firearms. It seems likely that similar cases may eventually establish a case law “ceiling” for Second Amendment rights, based around safety concerns that center on access. Such case law will need to be finely crafted, however, to avoid creating legal frameworks that could be expanded to bar access to other constitutional rights, in other contexts.
Access to specific firearms
Over time, courts will not only need to resolve questions about the outer limits of individual access to firearms, but they will also need to provide guidance about the kinds of firearms that qualify for protection under the Second Amendment.
As with standards of review, the Heller decision provides some insight into this matter, but no definitive resolution. Broad-based assault-weapons prohibitions (such as the one recently enacted by the Connecticut legislature) may become vehicles for clarifying such questions in the near future.
Interestingly, the scope of individual firearms ownership may be determined, in part, by looking back to the 1939 United States v. Miller decision that lower courts relied upon to uphold firearms regulations for many years. In Miller, the Supreme Court refused to overturn the conviction of a man for the possession of a sawed-off shotgun, since the Court could not “… say that the Second Amendment guarantees the right to keep and bear such an instrument.”
In Miller, the Supreme Court spent much time discussing the Second Amendment in the context of its militia clause, but also cited historical sources that noted that militia members furnished their own arms. Thus, Miller suggested a two-pronged test regarding the arms that were covered by the Second Amendment. Arms that fell under the scope of constitutional protection were those that:
1. Were in common use, and:
2. Could serve a militia (military) purpose.
Heller clearly supported the “common use” prong in making its case for the protection of a pistol at home, and it did not explicitly adopt the “militia purpose” criteria. In addition to pistols, this “common use” criteria would easily cover many of today’s long guns, including many colloquially referred to as “assault rifles.” Semi-automatic long guns like the AR-15 (versions of which fell under the 1994 federal assault weapons ban) are in wide circulation throughout the country, and squarely fit the “common use” criteria. Thus, regulations that ban categories of widely available weapons or accessories may trigger review by the courts. During such a review, we may discover more about the “floor” of the Second Amendment, and it is likely far more inclusive than just possessing a pistol.
Going forward, the “common use” analysis will likely not be the only test used to identify protected firearms, for that could freeze technological developments and case law within a specific era. This would place Second Amendment rights at variance from other Constitutional liberties (such as those of the Fourth Amendment), which have been applied to varying circumstances and technological platforms over time.
In the Heller majority opinion, Justice Antonin Scalia noted that the Second Amendment would not call into question existing restrictions on automatic weapons. Heller’s dicta suggests that an analysis could be developed to protect core Second Amendment interests (personal protection and other purposes) while still allowing some regulation of firearms technology on public safety grounds. Such an analysis would likely entail applying some sort of scrutiny-based framework to questions about firearms technology. This kind of framework might look upon wide-ranging gun bans with skepticism, and instead offer support to tiered regulations that cover limited classes of arms (machine guns, for instance) that are peripheral to securing the basic purposes of the right.
Post-Heller review of Second Amendment cases
Subsequent to Heller, lower courts have been busy reviewing firearm cases of all types. For instance, appellate courts in Maryland and Illinois have been split in their review of concealed-carry laws. The 7th Circuit Court of Appeals held that an Illinois ban on concealed-carry activities violated the Second Amendment, while the Fourth Circuit upheld Maryland’s concealed-carry regulations.
The “standard of review” question was addressed by the Fifth Circuit Court of Appeals late last year, in the NRA v. BATFE case. The case centered on a federal law that prohibited the sale of firearms to persons under 21 years of age. In NRA, three plaintiffs sued the federal government, claiming that the law violated the Second Amendment and the equal protection clause of the Fifth Amendment. The appellate court subsequently affirmed the judgment of the district court, which ruled in favor of the government.
More to the point, the NRA v. BATFE decision indicated that Second Amendment analysis should involve a “two-step” process that first reviews a claim to see if it includes “conduct that falls within the scope of the Second Amendment” and then makes a determination about whether such conduct should be reviewed under “strict” or “intermediate” scrutiny. This type of multi-level framework may make it ripe for wider adoption.
In the wake of Heller and McDonald, courts have much to address regarding questions of firearms ownership and access. Background checks, private sales, and other issues that regulate the ability to keep or acquire arms pose intricate questions, as do other Constitutional issues outside of the Second Amendment. Federal weapons bans that bar possession absent an interstate sale may implicate the Commerce Clause, for instance.
What is clear from the application of other rights-based case law is that the Second Amendment must have substance, but at the same time it is not limitless. Discerning its boundaries is important for establishing clarity in both the public safety and individual rights contexts. In emotionally charged and tragic times, political bodies are sometimes unable to arrive at the proper balance between the two, leaving courts to make further determinations and refinements.
Here, too, we ought to tread carefully, for our constitutional rights do not exist in isolation, but rather within an interconnected tapestry. Case-law determinations about the interpretation and extent of any right can stretch beyond a single category, and can impact the overall balance of power between citizens and the state. In times of turmoil, these are developments that we all must watch closely.
Matt Ehling is a St. Paul-based writer and television producer. He is the president of Public Record Media (PRM), a media organization that seeks out and publishes government documents.
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