Fraternal Order of Police II (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 II takes on the Second Amendment by way of a "substantive due process" challenge.

FOP argues that § 922(g)(9) violates the substantive due process guarantee of the Fifth Amendment by "unnecessarily and irrationally burdening important individual interests in possession of a firearm in the public interest, in serving the communit[y], and in pursuing an established career." FOP Br. at 36. The second interest has clearly not attained the status of a fundamental right. As to the third, it is true that if government action against a particular person "precludes" him from pursuing his profession, that action can infringe a "liberty interest"; if so, the predicate procedures must satisfy due process requirements. See Kartseva v. Department of State, 37 F.3d 1524, 1529-30 (D.C. Cir. 1994). But FOP's claim is that § 922(g)(9) violates "substantive" due process; yet it has failed to develop either a factual record or the legal standard for evaluating whether § 922(g)(9) burdens the liberty interest so deeply as to require even justification.

In other words, this court is saying that the FOP failed to introduce evidence supporting the claim that the Lautenberg Amendment infringes a police officer's right ("liberty interest", which probably results from case law more than actual Constitutional law) to pursue a career. There's not much to disagree with here. Personal decisions to commit crimes have consequences, often including the inability to continue in an established career. People with felony convictions (outside law enforcement, anyway!) usually have a hard time finding work, and this is rightly seen as a consequence of their choices rather than an infringement on their "liberty interest".

Accordingly we turn directly to the claim arising from the Second Amendment.

First we note that on appeal FOP also raises an independent Second Amendment claim. But as it did not do so in the district court¹we do not address it in that form. We must confess, however, that we are mystified by the decision to advance a substantive due process claim based on an explicit Second Amendment right in preference to a simple assertion of the explicit right itself. It is not apparent how a claim might be strengthened by being tucked into the catch-all of substantive due process.

I suspect that the FOP was not seeking to strengthen their claim by wrapping it in substantive due process, but was rather seeking to prevent their case from overturning firearms laws generally. They want their members to have firearms rights without impacting the ability of their members to confiscate firearms from felons or domestic violence abusers. Don't forget that the law in question applies to restraining orders, often issued routinely for divorce cases and the like.

If police officers are subjected to a restraining order that bars their possession of firearms, they can't do their job. That's the liberty interest. But an ordinary citizen who is subject to such an order would not have the "liberty interest" of pursuing a career infringed unless he happened to work in firearms. The FOP here is just protecting their own by working within a more convoluted framework.

Now, that may be giving them more credit than they deserve, since they did raise the Second Amendment directly in their appeal. However, since they did not do so in the lower court, the appellate court ignores the direct claim and focuses on the indirect "substantive due process" claim. So it might have been a simple mistake by the FOP.

In any event, the claim obviously requires us to consider the Second Amendment right, on which the Supreme Court's guidance has been notoriously scant. The government argues that FOP's claim fails because FOP has not "alleg[ed], much less prov[en], that section 922(g)(9) has any relationship to the 'preservation or efficiency of a well regulated militia.' " Gov't Br. at 35 (quoting United States v. Miller, 307 U.S. 174, 178 (1939)). Since Miller dealt with Congress's authority to prohibit ownership of short-barreled shotguns, FOP could have challenged the test's applicability by arguing that it serves only to separate weapons covered by the amendment from uncovered weapons. It did not do so, and we thus assume the test's applicability.

This is one of a very, very few decisions I have read that correctly interperts US v Miller. The court deserves credit for that. More importantly, in this case the application of the Miller test is binding precedent within the same circuit.

But we are not altogether clear what kind of "relationship"--or, to quote Miller more precisely, "reasonable relationship," id.--is called for here. This Miller test appears in some sense to invert the commercial speech test, which requires the government to show that legislation restricting such speech bears a reasonable relationship to some "legitimate" or "substantial" goal. See, e.g., City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 416 (1993); Board of Trustees v. Fox, 492 U.S. 469, 480 (1989). We suppose Miller would be met by evidence supporting a finding that the disputed rule would materially impair the effectiveness of a militia, though perhaps some other showing could suffice. We need not fix the exact form of the required relationship, however, because FOP has presented no evidence on the matter at all.

This is a little concerning. I don't recall any evidence on the record in Parker concerning the suitability of any of the weapons desired for militia use. Admittedly the District's wide-ranging ban certainly infringes such weapons, but Miller failed precisely because such evidence was not within judicial notice -- that is, the justices could not assume it without evidence.

I'll have to remember to go back and look for such evidence.

Instead FOP simply argues that, in "most" states, police officers can be called into service as militia members. But none of the nine states' provisions it cites appears to make police officers any more susceptible to such service than ordinary citizens (or in some cases, than males between the ages of 17 and 45). In any event, § 922(g)(9) does not hinder the militia service of all police officers, only of domestic violence misdemeanants whose convictions have not been expunged, etc. FOP never indicates how restrictions on the latter, relevant class would have a material impact on the militia.

In all honesty excluding those convicted of, or subject to restraining orders concerning, crimes of domestic violence would probably not significantly impact the militia. It is an individual disability that requires court action to invoke, not a universal one. This is certainly not the case in DC, where the prohibition is universal.

There is also a more subtle point in play here; the analysis is applied with the assumption that the individual police officers have Second Amendment rights linked to a militia and that militia service is very broad (eg, males aged 17 to 45 years). They are implicitly assumed to have rights derived from the Second as unorganized militia members despite no presentation of evidence that police officers are more likely to be called into militia service than ordinary citizens otherwise considered members.

It looks to me like we have a legitimate, individual-rights precedent here, albeit implied rather than explicit.

The downside is that the FOP lost this case; they did not get the requested immunity from the Lautenberg Amendment and remain barred from possession of firearms following domestic violence convictions or restraining orders. The tests applied to reach that decision are still precedential, however, and will almost certainly reach a different result if applied to the facts of the Parker case.

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Posted on 2006-07-08 13:55:44.0 by matthew@triggerfinger.org

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