By Jim March Simpson
Alabama just passed, by popular vote, a constitutional amendment changing how the courts are supposed to look at any law, policy or government action that limits self defense and/or “gun rights”. The short form: my prediction is that this change to the constitution will allow new lawsuits to succeed that strike down various aspects of Alabama’s gun and weapons control policies. However, there’s an odd fly in the ointment. It was advertised that the amendment “won’t cost us anything” when in fact it will in some challenges – not a lot, but the costs may cause the courts to try and limit the changes . . .
I’m a former paid lobbyist and grassroots activist in California who worked for ccrkba.org (political sister org to the Second Amendment Foundation) from 2003-2005. Then and prior I was extremely active in the California CCW fight, and I’m a veteran of almost half a dozen civil rights lawsuits since (mostly on electronic voting issues). This information regarding “strict scrutiny” and how it applies to gun laws comes from a conversation that lasted several hours with attorney Don B. Kates, the “grand old master” of the California gun law fights and who used to work for Dr. King in the civil rights movement.
Let’s start with what “strict scrutiny” means. The first thing Don explained is that the government can discriminate by law or by policy. The court has placed limits (“levels of scrutiny”) on that discrimination based on the circumstances.
The most extreme level is “strict scrutiny” which normally kicks in in one of two ways: the right being limited is “very fundamental” or the discrimination is along the lines of race, religion, national origin or the like. So for example, the right to park somewhere might not be very fundamental, but if there’s racial discrimination in the issuance of parking permits that discrimination is going to be shot down in court. The other example is how the 1st Amendment is handled – limitations on free speech for example are going to be subject to strict scrutiny.
The implications of strict scrutiny:
To survive the scrutiny test, the impact on civil rights but be intended to fix something vital, and must be “narrowly tailored” to do that. In other words, if there’s a less-restrictive way to accomplish the “vital” goal, a more restrictive limitation that is the object of a suit will lose.
Here’s why the AL amendment was necessary:
There have been a slew of challenges to severe limitations on carry permit access in states like New York, New Jersey, Maryland and California where carry permits exist but they’re handled on a “discretionary” basis. Federal appellate courts (three-judge panels) ruled in the first three that limitations on the 2nd Amendment should be dealt with on an “intermediate scrutiny” basis instead of strict scrutiny, meaning that the 2nd Amendment isn’t as “fundamental” as the 1st Amendment. Under “intermediate scrutiny” the courts decided that limiting carry permits to the “social and political elite” was OK.
The court in California (Peruta, 9th Circuit) didn’t decide on a standard of scrutiny, but ruled that limited permit access was not constitutional in that state or in Hawaii. Those 9th Circuit cases are being appealed so there’s no legal changes to carry permits in play yet, but Guam decided to do non-discriminatory permits regardless. The US Supreme Court had decided not to hear appeals in the New York (Kachalski), New Jersey (Drake) or Maryland (Woolard) cases. But the 9th Circuit decision creates a “circuit split” meaning the Supremes will have to deal with this soon.
The new Alabama constitutional amendment makes sure that an “intermediate scrutiny” analysis on self defense cannot happen in the area of state or local laws, ordinances or policies. What does all this mean? There are four laws that could be challenged as a result. Three of these, I think, are winners ranging from “slam dunk” to “probable.”
1) The Bowie Ban: Before the Civil War Alabama banned the concealed carry of handguns and “Bowie knives”, later clarified by the courts as “fixed-blades that won’t fit in a normal pocket”. Much later (150 years or so) they put in a carry permit system (titled “pistol permit”) for guns that still excludes large knives. This is a slam-dunk challenge – at a minimum people who have undergone a background check for the “pistol permit” should be trusted with megacutlery, and there’s no costs involved for any government agency other than changing “Pistol Permit” to “Weapons Permit”.
2) The Pistol Permit Itself: In 1903 the Vermont state supreme court ruled that limitations via a permit on handgun carry (open or concealed) violated that state’s version of the 2nd Amendment. For 100 years Vermont was the only state in which you didn’t need a permit to pack – just don’t be a prior felon and answer truthfully if a cop asks if you’re strapped. They were the sole state with Constitutional carry until Alaska cloned it in 2003, Arizona did it in 2010 and now Wyoming and Arkansas have followed suit.
Alaska’s crime rate, when analyzed before and after the 2003 change, shows only one variation: a small but noticeable drop in rapes, possibly as a result of more women packing heat. No increases in crime have occurred in any of the states that have made this switch. As a result, Alabama’s system of “pistol permits” is in jeopardy because the less-restrictive “Vermont carry” (or Constitutional carry) programs work – remember the “narrowly tailored” aspect of a strict scrutiny analysis. Odds of success: close to slam-dunk. Sheriffs’ offices get to charge $25/yr for the permits of which more than half goes to administrative overhead most likely, so the financial loss to those agencies would be fractional. A good and cheap starting point would be to do a public records request to a few Alabama sheriffs asking for cost and profit analysis documents. (It’s possible that tossing the permit process would actually save them money.)
3) No Guns At Courthouses: Right now we are required to disarm in the parking lot and leave our guns in the car. This increases the odds of handgun theft, not to mention negligent discharges, and leaves us disarmed. There have been notable cases of people ambushed outside courthouses where their assassin knew they’d be disarmed by law. In Washington state, Arizona and others the state courts are required to keep lockboxes by the front doors where you check your boomthing on entry. These systems work well and offer a less restrictive approach than the current Alabama process.
Problem: there’s costs involved for the lockboxes, I would guesstimate up to a grand or more per courthouse or other “disarmament zone” building. In theory we could hold raffles at gun shows to cover the costs. If we try to mandate this change by lawsuit without providing a funding mechanism, the fact that the amendment said “zero costs” may bite us in the posterior. Trying to keep us armed inside the court building would probably fail due to the language in Heller (2008) that seems to support restricting guns in “sensitive places”.
4) No Guns At Schools: The situation is similar to those at courthouses, but I think an attempt to do the same with lockboxes would fail. Why? First, they don’t generally have metal detectors at the doors and usually don’t have armed guards, both of which are needed to create a successful “gun free zone” within the building. We’re not going to succeed with the cost increases needed to put those in (whereas they already exist at the courthouses). And yet again, the Heller language on “sensitive places” would be in play.
The other big change is that if a particular government agent, acting on his/her own, violates the 2nd Amendment (say, a cop grabbing a lawful gun from a lawful owner) the “obviousness” of the violation will be increased and the odds of a successful lawsuit against that official actor will go up. Cops for example are able to make “good faith screwups” without getting slammed by lawsuits. Good faith exceptions will be more limited with the “importance” of the right to self defense elevated by this new state constitutional amendment.
Here’s the kicker for those in other states: we need to get the 2nd elevated to strict scrutiny established nationally by the US Supreme Court. What you see here is a set of examples of what that would mean nationwide.
Jim Simpson used to be known as Jim March before marrying Jill Simpson, an Alabama attorney, in 2013. He now resides in DeKalb County Alabama near Ft. Payne.