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National Review Online covers a recent  forum hosted by the Fordham Urban Law Journal on where gun rights legal issues are going to be headed in the post-Heller and McDonald world. According to Robert VerBruggen, “judging by a conference hosted by the Fordham Urban Law Journal last Friday, the two sides of the gun-control debate have simply regrouped, recalibrated their expectations, and lined up for battle once again. As definitive as Heller and McDonald may seem, they offer little guidance to lawmakers and lower courts as to what kinds of gun control are still permissible.” Little guidance? Heller and McDonald settled the questions of whether the Second Amendment protects an individual right (it does), and whether that is a fundamental right (it is). So, um, how much more guidance is really needed?

By virtue of being 1) specifically enumerated in the Bill of Rights and 2) a fundamental right protected by the “due process” clause of the 14th Amendment, the Supreme Court has stated on numerous occasions that any possible infringements must withstand strict scrutiny. What does that mean exactly? Well, infringements of enumerated, fundamental rights are considered presumptively impermissible, so it’s up to the governmental actors (legislators, regulators, judiciary) to prove that they are in fact, allowable. There’s a three-pronged test and if the law fails any one of the tests it does not pass strict scrutiny.

1) The law or policy must have been passed to meet a compelling state interest. Although this term has never been specifically defined, it is generally held to be something so important that it outweighs individual rights. For instance, national security or protecting the lives of many people can qualify as such. Amorphous statements about ‘public safety’ or ‘an educated citizenry’ would not be considered compelling interests.

2) The law or policy must be narrowly tailored to achieve its purpose. In other words it must be written so as to address the specific compelling interest without going beyond that. If it’s either overly broad or fails to address any aspect of the compelling state interest, it will fail the test.

3) Finally, the law or policy must be the least restrictive means available for achieving that interest. Similar to the idea of being narrowly tailored, this test also asks if there exists a less restrictive way of accomplishing the compelling state interest.

On top of that we have a number of Supreme Court precedents which address different kinds of gun laws. For instance, in the case of Staub v. City of Baxley the court held:

It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official — is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms. [emphasis added]

So every may issue carry permit law in the country is unconstitutional.

In Murdock v. Commonwealth of Pennsylvania SCOTUS held:

It is contended, however, that the fact that the license tax can suppress or control this activity is unimportant …  if it does not do so. But that is to disregard the nature of this tax. It is a license tax – a flat tax imposed on the exercise of a privilege granted by the Bill of Rights. A state may not impose a charge for the enjoyment of a right granted by the federal constitution. [emphasis added]

So every shall issue carry permit law in the country which requires a fee be paid, is unconstitutional.

The Supreme Court has also held that requiring a literacy test in order to vote is discriminatory, so there goes every carry permit law that requires training.

As I mentioned in a previous piece, the Justice Department was opposing South Carolina’s Voter ID Act, stating that:

according to the state’s data … minority registered voters were nearly 20% more likely to lack DMV-issued ID than white registered voters, and thus to be effectively disenfranchised by Act R54′s new requirements.

And now, according to an AP story:

The Justice Department’s civil rights division on Monday objected to a new photo ID requirement for voters in Texas because many Hispanic voters lack state-issued identification.

Photo ID laws have become a point of contention in the 2012 elections. Liberal groups have said the requirements are the product of Republican-controlled state governments and are aimed at disenfranchising people who tend to vote Democratic — African-Americans, Hispanics, people of low-income and college students.

So there you have it. The ATF’s requirement for a photo ID on a Form 4473 is disarming people who tend to vote Democratic, it’s discriminatory and therefore unconstitutional.

See how easy this is? All you have to do is look at existing precedents to find lots of unconstitutional gun laws.

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  1. Bruce, nice article. Unfortunately, you’ve made the argument too simple for a politician to understand.

    Oh, and in before MikeB comments on the length of Bruce’s submission, without addressing any points raised in said submission.

  2. Whats next for the anti’s is waiting for the supreme court to change membership, and then trying to push european gun control. That may be a lot of wishful thinking on their part, but they’ve never cared too much for reality.

  3. All salient points, Bruce, but they fall prey to one simple truth: most lawmakers don’t give two shits about the Constitution. Couple that with the fact that it’s extremely expensive and time consuming to get a suit heard by the Supremes, they’ll just keep trudging along their tyrannical path.

  4. So there you have it.

    Uh, no we don’t. Reading Heller and McDonald in such a simplistic way does them no service whatsoever. In both cases, the majority was very careful to tailor the holding to the facts, and the facts were that both cases involved gun possession in the home. Further, neither case requires strict scrutiny for permit laws. Thirdly, the Court went out of its way to pay homage to carry restrictions.

    Please, Bruce, don’t go all Earl Warren on us. Our current Court, unlike the Warren Court that f^cked up American jurisprudence for all time, isn’t one that makes sh!t up as it goes along. Neither should we. This Court does things the right way. So should we.

    Wishin’ ain’t makin’ it so. It’s going to take some time for the Courts to carefully create a new body of gun law jurisprudence. That’s the way it should be — the elected legislators should be making the laws, not some unelected old men and women in black bathrobes.

    • “Our current Court, unlike the Warren Court that f^cked up American jurisprudence for all time, isn’t one that makes sh!t up as it goes along. Neither should we. This Court does things the right way. So should we.”


      I’m happily surprised to read your thoughts on the integrity of the current Court.

    • Put the Second Amendment into a First Amendment mindset:

      “A well-educated voting public being necessary to the security of a free State, the right of the people to keep and carry books shall not be infringed.”

      Now see how willing the left would be to agree that this “right to keep and carry books” should be subject to a requirement for serialization and recordation of every book sold, books sold only to 18+ year olds, books sold only after an FBI “instant check”, books sold only to people with state-issued photo IDs, a limit on monthly book sales, and all of the other “reasonable” limits on our 2nd amendment rights. Plus, let’s apply all of the “reasonable book laws” to computers and internet access. Hey, it’s for the safety of the children – there are online predators out there!

      Wonder how great the outrage would be from the left? What’s that? Books aren’t dangerous? What kind of an idiot would think that? Karl Marx and “Das Kapital”? Adolf Hitler and “Mein Kampf”? “The Anarchist’s Cookbook”? The Koran? Seems to me that IDEAS are far more dangerous than bullets.

      Of course, the current administration, the leftist media, and the “education establishment” are working as hard as possible to outlaw ideas they don’t like. Can you say “politcal correctness”, boys and girls?

      • You forget that there are substantial limitations on free speech. Hate speech can be outlawed. Pornography can be limited to adults, and child pornography banned. As we all know, you can’t sohout “FIRE” in a packed movie house unless there is one. You may have a right to hold a protest march, but that doesn’t mean that it will be allowed to take place in the middle of an urban freeway at rush hour. Your “right” to leak secrets of national security can be infringed and criminally punished. Secret documents can be serialized to prevent theft. And so forth and so on. I agree that there is an apt analogy between the first amendment and the second, but not the one you seek to draw.

        • “As we all know, you can’t sohout “FIRE” in a packed movie house unless there is one.”
          Of course, but here’s the rub: we don’t cut out someone’s tongue before they enter a movie theater. The means to exercise the right remain intact, and the individual is trusted to exercise his right responsibly.

        • Then why do they call this area of con law “prior restraint”? Because your right to speak is regulated before you you do so. Same as 2A–there are restrictions on the manner (open/concealed, loaded/unloaded)in which your right can be exercised and the places where it may be exercised (sensitive places like courts, jails).

        • Really, then why can one be criminally prosecuted for engaging in it? Rather, it falls under the same categories as incitement to riot and is in fact outlawed.

  5. As far as I know, there has been no standard articulated yet for the Second Amendment. I’d love to see strict scrutiny applied, but honestly I think that’s unlikely. I think intermediate scrutinty is much more likely, which would requires the restriction further an important governmental interest in a substantially related way.

    • This is correct; in fact the cases that have come down suggest a sliding scale of scrutiny, which is highest for possession of arms in the home, and then is more intermediate when the singular right impacts valid public policy concerns. The Court specifically held that restrictions on manner of carry (i.e. concealed carry) are “presumptively lawful.” While this implies that there is a right to carry weapons openly, the Court didn’t exactly say this either. I predict that we are most likely to see an analysis similar to that employed in the First Amendment realm, allowing certain absolute restrictions in some circumstances, and more limited and narrowly tailored restrictions in others (e.g., time, place and manner restrictions). I cannot imagine any court upholding a right to carry in so-called “sensitive places,” and the Court has already telegraphed that it is unlikely to overrule such restrictions. Banning certain persons (felons and mentally ill) from possessing weapons are unlikely to be overruled either.

      As “absolute” as our guaranteed rights may facially appear, life, litigation, and judicial determinations are rarely so simple.

  6. It’s a tremendous leap of logic to think that strict scrutiny will be used for 2nd Amendment rights. I think we’ll be very lucky to get intermediate scrutiny. Most likely they will go with the rational basis test, which essentially means that so long as the government has a reason to limit the right then they can do so. This was curtailed recently in Maryland where a district court ruled that rational basis does not mean the government can require a citizen to explain why he needs to carry a gun, but that is the exception to the rule on rational basis. It’s not very hard whatsoever to justify infringing on rights with the rational basis test.

    The Supreme Court has yet to rule on which it will be, and this post is highly misleading.

    • I believe the Heller opinion explicitly rejected rational basis, at least for home possession of the gun.

      And the Woolard v. Sharidan case (recent Maryland case) settled on intermediate scrutiny for carrying a gun outside the home.

      Now, Woolard isn’t binding precedent, but it is a data point, and its analogy to 1st amendment law is logical. I haven’t read a case yet that applied rational basis to gun laws (though that certainly doesn’t mean such cases aren’t out there–I’d love a reference if anyone finds one).

      Overall I agree that the original post is more advocacy than analysis. For example, the idea that “may issue” permits are necessarily unconstitutional is wrong. As long as there are specific guidelines for an official to follow, and no squishy “good reason” language like that rejected in Woolard (which depends entirely on the discretion of an official), then “may issue” laws may survive. Likewise, requiring a fee for a permit may not be unconstitutional if it is related to the cost of such processing. And the voter ID laws have already been approved by the Supreme Court, so quoting the Obama Justice Department’s defiance of Supreme Court precedent doesn’t convince me that requiring an ID for a gun license is unconstitutional.

      In Heller, the Supremes rattled off a list of “presumptively valid” restrictions on gun possession. The battle will be fought on that turf. Heller did find the 2nd is an individual right–a huge victory. But remember, this is a fairly conservative court, and they follow federalist principles. They will leave the details to state legislatures, which are democratically elected.

      So the outcome really will depend on who we elect to our state offices.

      How’s that for a “get out the vote” motivator?

    • If Carolene Products continues to be the guide, strict scrutiny should become the standard. “Hope is man’s one good god.” We’re talking about a right established in the Bill of Rights. The 14th Amendment has been held to apply regarding its protection. One federal court seems to have invoked the need for restrictions to be narrowly tailored, implying that the least restrictive means should be used to satisfy the state’s compelling interests related to exercise of the right, though this issue isn’t authoritatively settled. I think the Roberts court has functioned with remarkable propriety so far. I’m hopeful. VOTE! Statutes matter. Even if your presidential choice loses, your support for other candidates can be decisive in shaping the laws which eventually come before the Court.

  7. Has the “shall not be infringed” portion of the second EVER been addressed? I don’t think it was in Heller or MacDonald. Correct me if I’m wrong.

    • That is correct. And I’d bet money that when it is, the Court will say that infringe means take away, irradicate, but that regulation, as long as the core right is protected, is allowed. In short, they will conclude that a right is not “infringed” by time, place and manner restrictions, just as are the rights of free speech and freedom of religion, also among our “fundamental” human rights.

  8. For most of us:
    Settled law = I agree.
    Judicial Activism = I disagree.

    In the end it’s all subjective, both for the Court and for the People, though the Court does a better job of keeping up pretenses. Civil rights law has a fence line that needs constant mending.

  9. “The Supreme Court has also held that requiring a literacy test in order to vote is discriminatory, so there goes every carry permit law that requires training.”

    I was with you up to this point. Some of us grew up with guns, others didn’t, still more trained in the military and a few of us are proficient with dozens of models. I think at a minimum some training is important to at least try and prevent IGOTD and educate people about DGU.
    Disagree all you want, I don’t see the infringement in that, the problem is deciding what training is required. I would not want Feinstein or Boxer to make that call and the probably wouldn’t want Bruce Kraft to decided either.

    • Shall we require a computer literacy course before allowing people to access the internet? The issue is not whether or not training is a good idea, for clearly it is. The issue is whether or not the state may require training prior to the exercise of a constitutionally-protected right. On that issue, friend, we disagree. I believe that we have already ceded too much power to the state, and I have yet to see one instance of the state relinquishing power it once possessed.

      • You can take 1000 simple acts of life and make a similar argument and feel you’ve won the debate. Any activity that potentially involves the safety or wellbeing of others requires that people involved in that activity know what the hell they are doing.

        And frankly, yes I think some literacy training would be a good idea for internet use.

        • As I said, the issue is not whether or not some training would be a good idea. The issue is whether we allow the state to dictate that training is required. I’m not trying to win a debate; I’m trying to change your mind. Nearly every activity undertaken in public “potentially involves the safety or wellbeing of others”. That’s just how it is when you step out of your house; other people’s actions can have an effect on you. Government-mandated training is not going to change that. Want proof? According to preliminary CDC data for 2010, 35,000 people died as a result of motor vehicle accidents. That same year, only 600 deaths were attributable to accidental discharge of firearms. Which activity has state-mandated training, again?

        • Is this a legitimate argument? What would the accidental death rate be if people operated guns as much as they drove. Since the average driver puts in around 15,000 miles a year, we are looking at a bare minimum of 250 hours of driving if one was somehow able to average 60 miles an hour. Do you think accidental gun deaths might increase some if 200 million Americans, aged 16 on up, spent almost an hour a day shooting their weapons?

  10. I understand that SCOTUS blinked when they made the Heller and McDonald rulings. I realize that they waffled an awful lot. My point was (and is) that since the Second is enumerated in the BoR and protects a fundamental right we should accept nothing less than the protections provided other enumerated and fundamental rights.

    I have said before and I will doubtless say again: never yield an inch. Make the antis fight for every infringement because any ground you concede is ground they won’t have to fight over.

    • Bruce: I ask myself why the 2nd Am, after Heller and McDonald, doesn’t fit within the Carolene Products guidelines.

      • Ropingdown, there’s no ennumerated Constitutional right to mislabel filled milk.

        Frankly, I’d be thrilled if some lower court were to apply Carolene to the right post-McDonald/Heller case. Since Lopez, it seems pretty clear that at least four Justices want to revisit the crazy Commerce Clause cases that were handed down during reign of King Franklin. Thomas seems especially eager to trim the reach of the Commerce Clause, and Thomas doesn’t sneeze without Scalia saying godzundheit.

        • Laugh. Agree. Just thinking of Carolene Products, footnote #4. And I don’t agree with the scholars who say, in effect, “there’s no use crying over Filled Milk.” There’s plenty of reason.

    • Yes, but that’s not the same as saying that strict scrutiny is the current legal standard. We hope that strict scrutiny will be the rule, but it’s not.

  11. IdahoPete, I use the same line of reasoning when talking with an ‘anti.’ Can the government require you to get a permit to speak, go to church, go over to your buddy’s for a Super Bowl party (that’s assembly), or write a letter to your Congressman?
    Guys, the way this whole deal is changing is by changing the mindset of one person at a time. If you can, talk one-on-one with ‘antis’. I suggest you be armed with facts and talk calmly and rationally. If we rant and rave, we come off sounding like ‘gun-nuts.’ That will only re-enforce stereotypes. When an ‘anti’ learns that their friend is a gun owner, the wall starts to crack.
    Show them a gun, take them shooting, better yet take them hunting. Many people have never touched a gun. They have been taught that it might jump up and shoot them. It is amazing to watch a person like that handle a gun, learn safety rules and shoot for the first time. The universal response I have heard is, “That was fun.” Usually followed by, “Call me the next time you’re going shooting.”
    The legislative and judicial battles need to continue but we each have our little part to play, day-by-day with our families, neighbors, co-workers and friends. We are the front-line in re-establishing our basic rights. The same thing applies to the rest of our rights that have been eroded, but this is a gun site.

    • Well said. The Constitution only means something if people will stand up for it. Before people can stand up for the Constitution, they need to know that it’s not a new energy drink. Without popular will, 2A, or any other amendment, mean nothing. I believe it was Dick Cheney who said the Constitution is “just a piece of paper.” Correct me if I’m wrong. The government, regardless of political party, has made it’s intentions clear. The executive branch will do what it wants to do, all for your safety, of course. The Supreme Court is a political animal. Look at Bush v. Gore. The wind is blowing for 2A, but don’t take it for granted.

  12. Comparing the reach and power of the First and Second is unavailing. Any attempt by the G to regulate speech is met with great suspicion by all courts. Regulations of speech are thisclose to being “presumptively illegal.” Attempts to regulate the use of guns are “presumptively legal.”

    The reason is pretty clear why the two right are and will be treated differently. Which would you rather face — a bad guy with a speech or a bad guy with a gun?

  13. 1) The law or policy must have been passed to meet a compelling state interest.

    Endless government posibilities for that one…

    For the good of the people…

  14. Were the court to apply a strict scrutiny standard regarding the carry of weapons, it would invalidate thousands of state laws (not to mention federal laws.) While I realize that would probably be fine with many people on this board, the court doesn’t roll that way, and for good reason: Laws are passed by legislators, who are elected by the citizens.

    When the court tells the legistlators “you can’t make this law” they are not giving power to the people, they are taking it away (go look at the Declaration of Independence – one of the specific greivances listed against King George was that he was not allowing Colonial legislatures to pass neccessary laws that were supported by the people in the colonies.)

    This court has respect for the state legislatures, which is as it should be. For that reason, the chance that the Court will apply a level of review that would strike down laws that are supported by a majority of the people (including a majority of gun owners) is a slim one.

    What I would expect is probably a rather complicated opinion in which the court says that gun laws have to be evaluated on the basis of whether they put such an “undue burden” on the right to bear arms as to constitute an impermissible “infringement” within the meaning of the 2nd amendment. Laws that expressly prohibit the transport of weapons outside the home would be such an infringment. Laws that require a gun owner to obtain a permit for each trip outside his home would also constitute such an infringement.

    On the other hand, laws that prohibit convicted felons or people adjudged mentally ill from owning firearms would probably not be such an infringement (although I would expect the court to eventually rule that there has to be some method for these people to reacquire their right to bear arms, just as convicted felons can petition to restore their civil rights so they can vote.) Laws that regulate the carry of concealed weapons are probably also presumptively legal since the court can say that is a legitimate exercise of the state’s Police Power (unlike some of the dreamers on TTAG, I don’t believe the court will ever rule that the 2nd amendment confers a right of every person to carry a concealed weapon without a permit.)


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