Balkinization  

Tuesday, January 15, 2008

Explaining The Bush Administration's Tepid Support For Gun Rights

JB

Many supporters of Second Amendment rights are, pardon the pun, up in arms over the Bush Administration Justice Department's amicus brief in Heller, the Second Amendment case now before the Supreme Court. The government's brief recognizes an individual right to bear arms but argues that historically the right excluded felons (even though they are presumably part of "the People"). Moreover, it argues that the Second Amendment may permit a wide range of reasonable regulations of firearms. These might include banning certain types of arms that might be used in military service today, restricting the choice of weapons that citizens can purchase or possess, limiting or criminalizing the flow of arms in interstate commerce, and even requiring installation of trigger locks. With friends like these, gun rights advocates might exclaim, who needs enemies?

George W. Bush depended heavily on support from the NRA and gun rights advocates in his two presidential election campaigns. Attorney General John Ashcroft went out of his way to embrace the individual rights position during Bush's first administration. What explains the seeming shift in position?

One possibility, overlooked by many critics, is that there has not been much of a shift in position. The Bush Administration has always supported an individual rights view subject to reasonable regulation. But because the public fight up to now has been only over whether the Second Amendment guarantees an individual right (and thus, whether any regulations, up to and including complete confiscation are unconstitutional), most politicians, and most members of the gun rights movement, have never had to face the more difficult question of how to implement an individual right once the courts recognized it. Once that issue is squarely placed on the table, fractures form among the consensus of people who previously supported an individual rights view. Some believe that all regulations of the right should be strictly scrutinized, leading to the dismantling of a sizable share of federal and state gun control laws). Others would like to retain most gun control laws but simply overturn the relatively small number they regard as unreasonable. Still others are content with a mostly symbolic recognition of gun rights leaving most regulations in place, because, for them, the issue all along has been about respecting gun owners and the social meaning of gun ownership.

From the perspective of a working Justice Department that depends on existing gun laws as methods of law enforcement, it is not difficult to predict that the Bush Administration would fall into either groups two or three. As an institution, the Justice Department has no interest in overturning-- or even putting into constitutional doubt-- most federal firearms regulations. Quite the contrary. Like most law enforcement institutions, it likes a quiet life.

Moreover, in a world in which most courts do not take constitutional claims for gun rights seriously, politicians seeking to energize supporters are free to make very strong arguments for Second Amendment rights, knowing that the actual fate of gun control legislation will be decided in legislatures, not courts. Once courts announce that they will take these claims seriously, however, the political calculus changes, and politicians may find themselves having to take positions on what kinds of laws they actually want courts to strike down. At this point, one can expect that mainstream Republican politicians will take far more circumspect positions to avoid frightening moderate voters.

What, then, about the complaint that gun rights advocates were hoodwinked by the Republican establishment, which pretended to support their views for years while seeking political power but now seems to be abandoning them, or at least hedging its support? If that is so, it would not be the first time. For decades now religious conservatives have complained that the Reagan, Bush I, and Bush II administrations actually did fairly little to support their substantive goals, and mostly offered them symbolic support. After a while, many religious conservatives got the message, and concluded that they were likely to be taken for granted by the Republican establishment, which was run mostly by secular business conservatives and defense hawks. It is possible that gun supporters will discover that they have occupied a similar position in the Republican coalition-- looked to eagerly each election year as sources of energetic support and fundraising, but actually given very little in terms of substantive results once Republicans gain power.

Of course, once the Supreme Court recognizes an individual right in Heller, the future of federal gun regulations will be in the hands of the federal courts. But because the federal judiciary tends to be composed of elites similar to those in the Republican establishment, one might predict that, at least in the short run, a Republican-controlled judiciary will not be significantly more radical in its conclusions than the Bush Justice Department is today. (And of course, Democratic appointees will probably be less so). As for the state courts, most states have had rights to bear arms provisions in their state constitutions for years, and they have mostly settled on a reasonable regulation test.

Does this mean that Heller will be only a symbolic victory? Not at all. It means only that the public fight over gun rights will have entered a new phase, one in which both major political parties will have to readjust their rhetoric.

Comments:

Of course, once the Supreme Court recognizes an individual right in Heller, the future of federal gun regulations will be in the hands of the federal courts. But because the federal judiciary tends to be composed of elites similar to those in the Republican establishment, one might predict that, at least in the short run, a Republican-controlled judiciary will not be significantly more radical in its conclusions than the Bush Justice Department is today.

I think this depends first upon how much guidance the Heller Court gives in its decision.

The Court may establish the standard of review up front or may simply rule that DC's statutes violate the Second Amendment under any standard and allow the lower courts to develop a standard or standards depending upon the issue.

Once the individual right is hopefully established and the various circuits are freed from their states rights precedent, it will be interesting to see how they start ruling on the myriad issues which will be presented.

I am not at all sure that the Circuits will carry Justice's water on this subject. After all, Justice wrote its amicus brief because it viewed the DC Circuit opinion as too strict an application of the Second Amendment. I also believe the Emerson case out of the 5th Circuit applied a compelling need standard.

It should be fascinating.
 

Great post, which I take a bit further in this follow-up suggesting that the type of litigants who pursues post-Heller claims may be critical to the development of lower court Second Amendment doctrine.
 

"I also believe the Emerson case out of the 5th Circuit applied a compelling need standard."

Well, as one who's read that ruling, I'd say they claimed to, anyway. But their version of compelling need sure ended up looking an awful lot like "rational basis", and I'm concerned that's what we'll get in this case: Individual rights as a matter of rhetoric, and the practical reality of a rational basis standard. (D.C.'s laws on firearms are so harsh, I doubt that they'd even pass that minimal level of review.)
 

Once the individual right is hopefully established and the various circuits are freed from their states rights precedent, it will be interesting to see how they start ruling on the myriad issues which will be presented.

I suspect that is easier said than done. In particular, if some courts decide that the Second Amendment absolutely protects felons' rights to buy suitcase nukes (or insert whatever extreme example of Second Amendment jurisprudence gone awry you can imagine), I doubt that people in other circuits are going to want to wait a decade for the legal process to work its magic.
 

There are three potential major issues in Second Amendment jurisprudence:

1) Who may exercise the right to keep and bear arms?

2) What arms are protected?

3) Where and in what manner may arms be kept and carried?

I am unsure whether the first question requires a standard of review. Felons, children and the mentally handicapped are normally denied some measure of constitutional rights because they have proven themselves unable to exercise mature judgment. I do not see why the Second Amendment should be any different.

The second question requires developing and applying a test. The DC circuit came close to a proper test by saying that all arms suitable for militia use and commonly owned during the time of the enactment are covered. I suggest a better test would be that all small arms which can be carried by an individual that are either suitable for militia use, are commonly owned at the time of the ruling, or do not offer a substantially greater risk of the arms commonly owned at the time of the ruling are covered. This latter test would cover new small arms weapons as they are developed over time, but arguably not far more dangerous weapons which end up being miniaturized.

However, the third question could present an opportunity for application of a tiered standard of review.

I would suggest that strict scrutiny applies to any regulation of keeping and bearing arms within one's own home.

An intermediate reasonableness test would apply to weapons carried in open public areas with any law which made it effectively impossible to carry arms in open public areas would be unreasonable. For example, a permitting process to determine if you are a felon, mentally disabled or a child would be reasonable if the permit shall issue to all people covered by the right. May issue permitting systems would be unreasonable. Likewise, the government could reasonably require that weapons be carried either in the open or concealed, but people would have a right to carry them.

Carry of weapons in buildings owned by the government or private parties is a much trickier subject because you have a conflict between the right to bear arms and property rights. On one hand, property owners should be able to condition the entry of others onto their property. On the other hand, barring people from carrying arms from open public areas into buildings where the general public is invited effectively limits the right to carry arms in open areas. I believe Georgia is wrestling with this question now.
 

So, should I be able to carry a sword (in a scabbord, of course) in public? Would that be more reasonable (and perhaps fashionable) than a concealed UZI? Or might a mace (no, not the spray) or a pike be okay to bear in public? Let's draw all kinds of lines on the claimed individual right to keep and bear arms and then give the command: "DRAW!"
 

I would suggest something different. The Second Amendment situates the right to keep and bear arms within the context of a well-regulated militia, which means not a professional military but an armed populace.

Therefore, the government retains all of the traditional powers to regulate the militia. These include:

1. How arms may be carried in public (i.e., regulations as to the places and manners of carrying arms);

2. What training and discipline is required of people who keep or bear arms (i.e., requirements of safety courses);

3. Determination of who is in the militia (i.e., gun registration requirements; limitations on felons; background checks on sales);

4. What arms may be kept and borne, subject to the proviso that the kinds of arms, and similar arms to those that were regularly kept and borne in 1791 are protected.

In other words, regulations that are analogous to those that a state might employ in constituting and regulating the militia are constitutional. Prohibition is not. This is consistent with the text and history of the provision.
 

Dilan:

You make a good point. Given that one of the purposes of the Second Amendment is to ensure an armed citizenry to provide the soldiers for a militia, the Second Amendment would have to be interpreted to address that purpose.

This is the best argument I have seen for requiring training in the use of firearms. However, I think there would be problems if such a requirement was imposed as a prerequisite to exercising the right to keep and bear arms. For example, while a very good practical argument could be made for mandatory education in civics before a citizen could exercise the franchise, such a prerequisite is almost certainly unconstitutional.
 

However, I think there would be problems if such a requirement was imposed as a prerequisite to exercising the right to keep and bear arms. For example, while a very good practical argument could be made for mandatory education in civics before a citizen could exercise the franchise, such a prerequisite is almost certainly unconstitutional.

# posted by Bart DePalma : 10:52 AM


Yeah, can you imagine if they required someone to pass a test before they could carry a firearm? Heck, imagine if they required you to pass a test before they let you drive a car or practice law? What an outrage!

Wait a second...
 

bb:

The law considers the ability to practice law or drive a car a privilege, not a constitutional right.
 

The law considers the ability to practice law or drive a car a privilege, not a constitutional right.

# posted by Bart DePalma : 11:43 AM


No, you acknowledged that it's not a constitutional right unless you have the proper training. Then you tried to make an asssine argument that it wasn't practical to require militia training (even though it appears to be in the Constitution). I was just mocking your assinine argument that training was not practical.
 

Bart:

My comment got eaten, so I will try to reconstruct it. Essentially, I don't buy your analogy to the right to vote. First, I don't think that any caselaw holds education requirements CATEGORICALLY unconstitutional; rather, they are unconstitutional when used as a cover for race discrimination, and they are also barred by statute.

Further, were there a constitutional right to vote, and were it worded similarly to the Second Amendment (with a purpose clause that mentioned an educated populace), I think education requirements would be upheld.

The fact that the right to bear arms is constitutionally protected doesn't really affect the analysis, because the issue is the scope of the right, not how important it is.

The reason I think training is constitutional is that if, in 1792, the government did a gun census and then required everyone who owned guns as part of the militia to show up once a year for militia training, I have no doubt this would have been considered constitutional. A gun safety course seems to me to be the logical analogue of that.
 

dilan said...

Bart: My comment got eaten, so I will try to reconstruct it. Essentially, I don't buy your analogy to the right to vote. First, I don't think that any caselaw holds education requirements CATEGORICALLY unconstitutional; rather, they are unconstitutional when used as a cover for race discrimination, and they are also barred by statute.

I think the standard is whether the requirement imposes an undue burden on the exercise of the right.

For example, it is unlikely that the Supreme Court will find that spending an hour or so in a DMV office to get a free ID imposes an undue burden on voting. However, unless your proposed safety training is relatively brief and paid for by the government, I suspect that you would have a problem imposing firearms training as a prerequisite to exercising the Second Amendment right.

Also, you may have an underinclusiveness problem if you propose to require that only firearm owners undergo "militia firearms training" while federal law has always defined the unorganized militia as including all males of fighting age. If this is truly militia training as opposed to a pretext to impose a training prerequisite to the right to keep and bear arms, why isn't the entire unorganized militia being trained.

BTW, the NRA and I have no philosophical problem with your proposal. Everyone who intends to keep and bear arms ought to know how to properly and safely use them. However, I think you may have some constitutional problems if the Second Amendment is treated like the rest of the Bill of Rights.
 

However, unless your proposed safety training is relatively brief

Why? It seems to me that it should be sufficient to properly train you to be a member of a militia. That sounds like National Guard training to me.
 

Bart:

I don't think the underinclusiveness problem is a problem at all. Indeed, it would even survive strict scrutiny (which isn't going to happen in the Second Amendment context anyway)-- it is the least restrictive means of ensuring that any members of the militia who have firearms know how to safely use them in the event that the militia is organized.

In terms of who pays for the classes, unless you are contending that the courts are going to adopt something along the lines of a Minneapolis Star Tribune rule prohibiting taxation of firearms or placing financial burdens on their ownership (again, really doubtful), I doubt that's a problem either. Indeed, again, if that hypothetical 1792 statute required the militia members to report to a military facility some distance away for the training, I still doubt anyone back then would have considered it a Second Amendment violation.

The important thing here is that the Second Amendment doesn't enact the NRA's political platform. It protects the right to keep and bear arms because the framers saw an armed citizenry as beneficial because it could be organized when needed into a military force for the defense of the free state.

The strange thing about this-- on both sides of the debate-- is that the framers were actually very clear about what they wanted to do (clearer than they were in, say, the Fifth Amendment due process clause, let alone the Ninth Amendment) and yet so many people want it to be as if they were doing something else, e.g., protecting a "collective" right (whatever that is) or stepping into the modern gun control debate and barring any imposition on firearms ownership that gun rights groups don't like.
 

I think you may have some constitutional problems if the Second Amendment is treated like the rest of the Bill of Rights.

Yes. Because the nun guts are gonna go whacko if there's even the slightest hint of the teensiest burden to their right to carry around and flaunt large phallic symbols.... What are those damn First Amendment advocates gonna do? Write editorials?!?!? That's nothing compared to armed insurrection by people like Koresh ... or Freemen ... or Posse Comitatus freaks ... or militia wannabees running around in cammies toting .50 semi-automatic rifles....

Cheers,
 

You neglected to put "reasonable" in quotes.
 

There's a large difference between a promise to support the religious bunch and supporting an amendment to the Bill of Rights. In the first instance, apart from encouraging legislators to aim for certain things and appointing conservative judges, there is little a president could really do that would be constitutional. Most of the things that religious conservatives want done do not fall within the purview of the executive branch. The same cannot be said for the latter however. The BATFE is wholly part of the executive branch, and what they do is in the end the direct realm of the president's responsibility.
 

Arne would have us believe that the mere act of owning or carrying a firearm turns someone into a raving lunatic. This is analogous to thinking possession of a camera turns someone into a child pornographer.

With regards to militia training, I agree it makes sense for firearm owners to know how to operate their firearms safely. However, the reference to the 1792 Militia Act is specious as that act was rescinded in part due to the burden it placed upon the populace.
 

es. Because the nun guts are gonna go whacko if there's even the slightest hint of the teensiest burden to their right to carry around and flaunt large phallic symbols....

1. Why is it that so many women have concealed weapon permits? Are they anxious to "flaunt large phallic symbols"? Fortunately, Freud had something to say about this--that a fear of guns was a sign of arrested sexual development.

2. Most states now have "shall issue" concealed weapon permit laws--and there is little argument from gun rights activists about these laws. Some impose training requirements, some do not. Permits are readily available to those adults who do not have felony or recent violent misdemeanor convictions, mental illness lockups, or addiction problems.
 

Arne would have us believe that the mere act of owning or carrying a firearm turns someone into a raving lunatic.

I believe the technical term for this is projection. My experience over the years is that the vast majority of adults that would pass the background check required for a concealed weapon permit are calm, rational people.* Those promoting gun control tend to be a bit more...emotional, shall we say?

* Example: many years ago, I knew a guy with a carry permit (where getting such permits is remarkably hard). There were loaded handguns all over the place. The wife had a very unpleasant history--buried a stillborn child when she was 11 (piano teacher took advantage of her). She was busily having sex with, it seemed, half the guys in the county--including her husband's best friend, who rented a room in their house. And yet when all this came out, there was no rampage with a gun. Even I, a supporter of gun rights, was surprised.

The people that are the problem with guns are pretty easy to identify--and they aren't, with a few exceptions, ordinary adults who just lose it one day. There's almost always significant warning signs: previous mental illness lockups; previous felony or violent misdemeanor convictions; substance addiction problems. About 1/3 of murders are done by minors--who tend to emotionally immature.
 

I am a retired Texas peace officer currently working as a correctional officer.

The following are quotes from the entries in this blog:

"Felons, ..... are normally denied some measure of constitutional rights because they have proven themselves unable to exercise mature judgment." "limitations on felons" "felons' rights to buy suitcase nukes" "Permits are readily available to those adults who do not have felony or recent violent misdemeanor convictions, mental illness lockups, or addiction problems."

Everyone who used the term "felon" is apparently convinced that once someone is convicted of a felony his 2nd amendment rights as well as others are and/or should be permanently terminated.

Just a couple of questions. When in this country's history did a minor felony conviction become the equivalent of a life sentence?

When I first entered law enforcement - The possession of any measurable amount of marijuana was a felony. Theft over $50.00 was a felony. Theft of a $0.69 package of bologna was a felony.

People who were convicted of these crimes, who are still alive, are still serving their sentences. How did we let this happen?
 

I can construct a rationalization for felonies being lifelong firearms disabilities. I don't necessarily agree with it, but you can defend it based on original intent. In 1789, people convicted of felonies were theoretically subject to capital punishment. Before the Revolution, Pennsylvania was hanging people for burglary on a regular basis. A lot of Britons came to America with a brand in the hand to show that they had been given leniency by a judge for a hanging offense. If you ended up in a British court with a brand in the hand--well, to the gallows you went.

There were 168 (or 169, depending on how you count them) capital offenses under English law when the Revolution happened. I would argue that denying someone the right to own a gun for life is certainly less severe than hanging them. Thus, application of original intent allows lifetime firearms disability for felonies.

We seem to be moving back towards too many felonies--especially about drug offenses. I think there is a strong policy argument for only making violent felonies into lifetime firearms disabilities, but I don't think there is a constitutional argument based on original intent in this direction.
 

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