Fraternal Order of Police I (wrt the Second Amendment)

The Parker brief I have been analyzing cites two related cases, the Fraternal Order of Police v United States (FOP I, FOP II). Their cite of these cases is something new and I will thus examine each case in detail as it affects the 2nd Amendment. Some background: in 1996 Congress passed the Lautenberg Amendment which bars firearms possession from individuals convicted of a domestic violence misdemeanor or those subject to a domestic violence restraining order.

FOP I pretty much explicitly avoids the 2nd Amendment, deciding the case on equal protection grounds:

[10] Equal protection analysis is substantially identical under the Fifth Amendment and the Fourteenth. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). Usually the outcome turns largely on the level of scrutiny to be applied. If a law neither burdens a fundamental right nor targets a suspect class, courts must uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e.g., Heller v. Doe, 509 U.S. 312, 319 (1993). Laws that fall into either of the above categories, however, are subjected to strict scrutiny. See, e.g., City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439-40 (1985) (discussing tiers of scrutiny). The Order concedes that persons convicted of domestic violence misdemeanors are not a suspect class but asserts that the 1996 amendments impinge on a fundamental right - the right to bear arms guaranteed by the Second Amendment. The government responds that the Second Amendment right does not belong to individuals, but exists only in relation to "the preservation or efficiency of a well regulated militia," United States v. Miller, 307 U.S. 174, 178 (1939), and that the 1996 amendments do not restrict state militias.

This argument is about whether the 2nd Amendment applies to a police officer. The government makes the usual militia argument, equating the militia with the National Guard or Reserve forces. They cite US v Miller for this proposition, in my opinion incorrectly. If the police officers are considered militia members, then the equal protection test would have to apply the strict scrutiny standard to determine the constitutionality of the law in question. If they are not militia members, then the rational basis test applies.

[11] Analysis of the character of the Second Amendment right has recently burgeoned. See, e.g., Akhil Reed Amar, The Bill of Rights 257-67 (1998); David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 Yale L.J. 551, 572-86 (1991); compare Hickman v. Block, 81 F.3d 98, 101-03 (9th Cir. 1996), with United States v. Gomez, 92 F.3d 770, 774 n. 7 (9th Cir. 1996). Despite the intriguing questions raised, we will not attempt to resolve the status of the Second Amendment right, for we find that the 1996 amendments fall into the narrow class of provisions that fail even the most permissive, "rational basis," review. See, e.g., City of Cleburne, 473 U.S. 432.

Here, the court ducks the 2nd Amendment question. It concludes that it doesn't matter whether the police officers have 2nd Amendment rights or not, because the law in question would fail the rational basis test.

[12] Section 925 extends the "public interest" exception to all sources of the firearm disability except domestic violence misdemeanors. It thus allows the states to arm police officers convicted of violent felonies, and even crimes of domestic violence so long as those crimes are felonies, while withholding this privilege with respect to domestic violence misdemeanors. No reason is offered for imposing the heavier disability on the lighter offense. The government's brief argues that a special focus on domestic violence as compared to other misdemeanors is rational, and we agree. The defect is the neglect of more severe crimes of domestic violence, about which the government says nothing.

There is additional analysis supporting this conclusion, explaining why the domestic violence prohibition on police officers specifically (but not on the general population) fails the rational basis test. It applies to police officers specifically because there are exceptions for arming felons "in the public interest" but not for arming those subject to the Lautenberg provisions "in the public interest".

Personally, I don't find enlisting felons as police officers in the public interest at all, but that's a different argument.

See also FOP II, which does reach the Second Amendment claims.

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Posted on 2006-07-08 13:28:36.0 by matthew@triggerfinger.org

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