Jul 14, 2010

Posted in McDonald v. Chicago

The Epic Failure of Heller and McDonald

Update: I address Dennis Henigan’s Huffington Post blog post, which cites this post, here.

I previously lamented the failure of McDonald to clarify the nature of permissible gun regulations. Without setting any tier of scrutiny, or noting which party bears the burden of proving a constitutional violation, the lower courts would be left uncertain. This is the epic failure of Heller and McDonald.

The Court merely reaffirmed the holding in Heller that “longstanding prohibitions” and bans in “sensitive places” are still permisisble. Unfortunately, we learn nothing new about the types of gun control regulations that are constitutional.

The majority opinion categorically rejected any balancing test. But this standard would not last long.Judge Easterbrook’s en banc opinion yesterday in United States v. Skoien proves my point.

Municipal respondents assert that, although most stateconstitutions protect firearms rights, state courts have held that these rights are subject to “interest-balancing” and have sustained a variety of restrictions. Brief for Municipal Respondents 23–31. In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicialinterest balancing,

Inevitably, all judicial review requires some form of balancing tests. The Court has never accepted Justice Black’s admonition that the First Amendment demands that Congress shall make no law–that is any law whatsoever–abridging the freedom of speech. The failure to provide any contours to the right not only invites, but practically demands that lower courts do so.

Easterbrook quickly discounts the dicta in Heller, and notes that it the courts should grant wide deference to the “people’s elected representatives” in order to fill in the details. The rather anti-majoritarian holding of Heller–where the Court rebuffed the laws of the popularly elected representatives of DC–becomes an ode to the majority, as the same bodies that routinely infringe second amendment rights now get to “fill[] in . . . [the] details” on the proper types of categorical limits.

More after the jump.

[The Heller dicta] are precautionary language. Instead of resolving questions such as the one we must confront, the Justices have told us that the matters have been left open. The language we have quoted warns readers not to treat Heller as containing broader holdings than the Court set out to establish: that the Second Amendment creates individual rights, one of which is keeping operable handguns at home for self defense. What other entitlements the Second Amendment creates, and what regulations legislatures may establish, were left open.

The opinion is not a comprehensive code; it is just an explanation for the Court’s disposition. Judicial opinions must not be confused with statutes, and general expressions must be read in light of the subject under consideration. Although the passages we have quoted are not dispositive, they are informative. They tell us that statutory prohibitions on the possession of weapons by some persons are proper—and, importantly for current purposes, that the legislative role did not end in 1791. That some categorical limits are proper is part of the original meaning, leaving to the people’s elected representatives the filling in of details.

While the opinions in Heller and McDonald are mostly originalist opinions that consider how the right existed in 1791 and 1868 respectively, Easterbrook would not take this cue.

So although the Justices have not established that any particular statute is valid, we do take from Heller the message that exclusions need not mirror limits that were on the books in 1791. This is the sort of message that, whether or not technically dictum, a court of appeals must respect, given the Supreme Court’s entitlement to speak through its opinions as well as through its technical holdings.

Because the Court did not set a tier of scrutiny,or at least articulate who bears the burdens, Easterbrook fashions quite a deferential test that only requires a “substantial relation”–a burden the Court, and not the government, proves by producing ample empirical research.

The United States concedes that some form of strong showing (“intermediate scrutiny,” many opinions say) is essential, and that §922(g)(9) is valid only if substantially related to an important governmental objective. See Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 202–04 (1999) (using this formula for some First Amendment questions); Heckler v. Mathews, 465 U.S. 728, 744–51 (1984) (using this formula for statutes that affect marriage and childbearing). The concession is prudent, and we need not get more deeply into the “levels of scrutiny” quagmire, for no one doubts that the goal of §922(g)(9), preventing armed mayhem, is an important governmental objective. Both logic and data establish a substantial relation between §922(g)(9) and this objective.

Judge Sykes, who hews closer to the originalist analysis of the Court in Heller and McDonald argues that the En Banc Court failed to place enough of a burden on the government.

This approach fell far short of the legal heavy lifting normally required to justify criminally punishing the exercise of an enumerated constitutional right.

Not only does the en banc opinion eliminate the need for the government to do the “heavy lifting,” Judge Easterbrook gives the United States a “decisive assist.”

When it comes to applying this standard, they give the government a decisive assist; most of the empirical data cited to sustain § 922(g)(9) has been supplied by the court. This is an odd way to put the government to its burden of justifying a law that prohibits the exercise of a constitutional right. With respect, I cannot join the en banc opinion. The court declines to be explicit about its decision method, sends doctrinal signals that confuse rather than clarify, and develops its own record to support the government’s application of § 922(g)(9) to this defendant.

Judge Sykes in dissent disagrees with the majoritarian and “minimalist impulse[s]” of the En Banc Court but notes that their “characterization of Heller is hardly fair.”

It ignores the Court’s extensive analysis of the original public meaning of the Second Amendment and understates the opinion’s central holdings: that the Amendment secures (not “creates”) an individual natural right of armed defense not limited to militia service, Heller, 128 S. Ct. at 2801, and at the core of this guarantee is the right to keep and bear arms for defense of self, family, and home,

It is true that Heller left many issues open, but that is not an invitation to marginalize the Court’s holdings or disregard its decision method.

Sykes properly shifts the inquiry from Easterbrook’s legislative deference to the majority to a judicial inquiry into the original meaning of the Constitution.

First, no one has suggested that the legislative role ended in 1791; the pertinent question is how contemporary gun laws should be evaluated to determine whether they infringe the Second Amendment right.

Sykes reverses Easterbrooks presumption of constitutionality–viz Footnote Four–and employs a presumption of liberty.

We simply cannot say with any certainty that persons convicted of a domesticviolence misdemeanor are wholly excluded from the Second Amendment right as originally understood.11 Because Skoien is not categorically unprotected, the government’s use of § 922(g)(9) against him must survive Second Amendment scrutiny.12

These separate opinions cut to the heart of notions of constitutional libety and majority rule. While Easterbrook is willing to ignore the original import of the right to keep and bear arms when certain empirical and legislative findings counsel so, Sykes is willing to stand up for the freedoms protected by our Constitution.

Sadly, Sykes dissented alone. The two judges who had previously joined her on the opinion departed to Judge Easterbrook’s decision. In light of the fact that the Supreme Court has twice failed to articulate proper standards to consider the 2nd Amendment, Easterbrook’s opinion will likely rule the day.

The Court’s failure to set a tier of scrutiny or explain how laws should be considered in McDonald and Heller has become quite significant. Easterbrook set forth a framework that will likely be relied upon by most courts. Sykes, who seeks to use an originalist framework, is alone in dissent. Even though the Supreme Court rejected a balancing test, following Skoien lower courts will start weighing interests, which is exactly what Breyer wanted.

Don’t expect SCOTUS to resolve this question. There is no way the Court grants cert on an issue as muddy as giving guns to people who commit domestic crimes. Additionally, there is no Circuit split here.

This challenge could arise in other misdemeanor contexts–mainly white collar crimes. Should someone who is found guilty of tax evasion or medicare fraud be disarmed forever? That, will likely be the next challenge.

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