Summary of Argument
Plaintiffs plainly possess the three elements of standing necessary to bring this action: (1) the challenged laws implicate a constitutionally protected zone of interest, (2) Plaintiffs? intent to violate the law is uncontested, and (3) in contrast to the sparse factual record of Seegars v. Ashcroft, 396 F.3d 1248 (D.C. Cir. 2005), Plaintiffs have established receiving actual, specific threats of prosecution.Of these three elements, the most difficult to establish will probably be the first. It's hard to contest intent; even if it was attempted, many of our plaintiffs have significant reason to fear for their safety without arms, and some already own firearms (stored elsewhere). The facts on the record make it fairly clear that prosecution is not a hypothetical. The defendents may attempt to argue that prosecution is not a certainty, but their own record suggests that they are unlikely to succeed.
The real question is whether the restriction on firearms is an infringement upon a Constitutional right. We all know that the Constitutional text is straightforward, but the legal issue has been clouded. Most of the favorable precedents for pre-enforcement challenges come from First Amendment law. It doesn't necessarily carry over to the Second. There are other, unfavorable precedents that do apply to the Second. In short, this area of law is both sparse and contradictory.
Turning to the merits, this Court recently observed, ?the Supreme Court's guidance has been notoriously scant? regarding the Second Amendment. Fraternal Order of Police v. United States (?FOP II?), 173 F.3d 898, 906 (D.C. Cir. 1999). Lower federal courts are presently divided on the question of whether the Second Amendment guarantees a personal right to keep and bear arms; a so-called ?collective right? of the states to arm the militia3; or a hybrid ?sophisticated collective right,? by which individuals enjoy a right to keep and bear arms, but only in service of the state.4 For much of the mid-twentieth century, versions of the ?collective rights? theories were summarily adopted by federal courts with little or no analysis of constitutional text, history, or structure.Here, we begin to get into the parts of the argument that David Hardy (Of Arms and the Law) found interesting.
But as this Court has recognized, ?[a]nalysis of the character of the Second Amendment right has recently burgeoned.? Fraternal Order of Police v. United States (?FOP I?), 152 F.3d 998, 1002 (D.C. Cir. 1998) (citations omitted). As courts and scholars have finally begun to apply meaningful, non-cursory, analysis to the Second Amendment, the trend strongly favors the ?individual rights? model long ago embraced in state courts.5 In the wake of an impressive array of scholarship from across the ideological spectrum,6 the Fifth Circuit became the first federal appellate court to thoroughly examine the text and history of the Second Amendment. Based on its exhaustive analysis, the Fifth Circuit concluded that the Framers of the Bill of Rights intended to, and textually did, guarantee in the Second Amendment an individual right to keep and bear arms, unrelated to militia service. United States v. Emerson, 270 F.3d 203 (5th Cir. 2001).The Emerson case got quite a lot of attention at the time. It produced a lengthy and well-researched opinion that found the Second Amendment was an individual right. These are good things. The problem is, that same decision found that the restriction on firearms possession by those under a domestic-violence restraining order was not an infringement.
It's sort of like a boxing match where one boxer knocks out his opponent a second after the bell rings and loses on points.
As early as 1875, the federal government adopted the litigating position that the Second Amendment secures an individual right to keep and bear arms. United States v. Cruikshank, 92 U.S. 542 (1875). Emerson?s ?individual rights? model is now the position of the United States.7 Most recently, an extended, scholarly memorandum opinion for the Attorney General concluded that ?The Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias.? Steven Bradbury, Howard Nielson, Jr., and Kevin Marshall, Whether the Second Amendment Secures an Individual Right, http://www.usdoj.gov/olc/secondamendment2.htm (Aug. 24, 2004).Here's what's going on. In FOP I, a police officers union sued the government alleging that the prohibition on firearm purchases by those subject to domestic violence convictions or restraining orders violated a laundry list of laws and constitutional prohibitions, including the 2nd Amendment. The government explicitly avoided analysis of the 2nd Amendment claims, deciding the case in favor of the plaintiffs on equal protection grounds, but did note that the law would fail even the most permissive standard ("rational basis") for 2nd Amendment review.
In FOP II, the Second Amendment claim is reached. Although it fails (since barring those persons convicted of a domestic violence misdemeanor from militia service would not substantially impair the preservation and efficiency of a well-regulated militia), the analysis is consistent with the individual rights model. The decision additionally notes that police officers are not more likely to be called into militia service than ordinary citizens.
For more on these two cases, see my specific analysis of the FOP cases, linked above.
Considered analysis of the history, text, and structure of the Second Amendment, as well as of the Constitution as a whole, makes clear that citizens enjoy an individual right to keep and bear personal firearms outside the context of military service. The Supreme Court?s only direct Second Amendment precedent, United States v. Miller, 307 U.S. 174 (1939), presumes the individual rights model, while other cases reflect the commonsense assumption that the Second Amendment, like other Bill of Rights provisions, guarantees individual rights.This is true, but there's a catch; the Supreme Court rarely takes cases that address the 2nd, and precedent from the lower courts is usually (but not always) against us by the least direct route possible.
The Amendment?s preamble, like other prefatory language in the Constitution, cannot be construed to negate the Amendment?s operative clause. The ?collective rights? theories are incompatible not only with the Second Amendment?s text, but conflict with the clear weight of history as well as the plain text of various other constitutional provisions. But rather than engage the relevant text, history, and precedent, the District Court?s analysis rejecting Plaintiffs? claims was limited primarily to observing that the Supreme Court has not reversed the courts that have adopted the contrary viewpoint.One of the watchwords of Supreme Court jurisprudence is that refusing to hear a case (denial of certiorari) does not reflect on the merits of the case and has no precedential value. Nonetheless, in the absence of more concrete guidance, the lower courts seem willing to take the implication in this type of case. It's an error, but an understandable one.
To recognize the constitutional right is to decide for Plaintiffs. This Court need not decide whether the Second Amendment guarantees a ?fundamental? right entitled to the protection of strict scrutiny,9 a nonfundamental right subject to rational basis review, or some other class of right entitled to an intermediate level of protection. Plaintiffs do not challenge laws imposing any particular regulation on their Second Amendment rights. Plaintiffs challenge a complete ban on the possession of any functional firearm within their homes.What's being said here is that the Parker case doesn't risk making substantial new precedent with regard to gun control laws. It's about a complete ban, not about registration, licensing, safety classes, concealed carry, etc. The court will not need to decide anything about the level of scrutiny applicable to Second Amendment rights (which would set a precedent affecting many other cases); instead it can rule narrowly that a complete ban on functional firearms violates the Second Amendment regardless of the level of scrutiny applied.
It doesn't mean that a win here won't eventually shake things up, but it won't happen in this case.
Whatever else the government may do with respect to gun ownership, a total prohibition of functional firearms within the homes of peaceful, law-abiding citizens ? including a ban on the ownership of a handgun, the quintessential personal firearm ? is flatly inconsistent with the Second Amendment?s guarantee of a right to keep and bear arms.I think this would result in the case being sent back to the lower court with explicit instructions to rule favorably. I'm not sure it's possible to win a motion for summary judgement and then lose the judgement itself, but since we are briefing the merits, presumably any decision issued by the court would be on the merits and the lower court would be bound thereby.
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