Equal Protection for the Second Amendment

April 6th, 2011

I previously blogged about a recent suit field in New York City. New York State sets a maximum gun registration fee of $10. However, New York City is exempted from that policy, and the annual registration fee is $340. The plaintiffs contend that this fee violations the Second Amendment. Alternatively, the plaintiffs contend that this regime violates the Equal Protection Clause.

In Equal Protection from Eminent Domain. Protecting the Home of Olech’s Class of One I explained that the equal protection clause can be used as means to enjoin eminent domain when similarly situated people are treated disparately through Olech’s “class of one.” As I conceded, because these claims would not be subject to rational basis review, absent some kind of Cleburne-esque heightened rational basis review, these claims would likely fail.

But what if a fundamental right–such as the Second Amendment–is applied in this context? What if the Plaintiffs can show that they are being treated disparately from other similarly situated citizens with respect to a fundamental constitutional right?

In this sense, the Equal Protection Clause, working in tandem with the Second Amendment, can serve as the basis for a 1983 suit challenging the constitutionality of NYC’s regulation.

To state an Olech 1983 claim, there are three elements. (Some Circuits require a showing of malice, others do not. I will assume, as I did in my article that malice is not required, until the Supreme Court says otherwise).

First, you have to define the class. This is simple enough. Any New York City resident who is subject to the high registration fee.

Second, you have to establish intentional or differential, or unequal, treatment. Again, this is easy. New York City residents are subject to a $340 fee, while people possessing the same firearms outside of the City only have to pay $10.

Third, you have to apply the relevant tier of scrutiny. If the Second Amendment is a “fundamental” right, then strict scrutiny should apply. McDonald, which referred to the Second Amendment as a fundamental, incorporated right suggests that strict scrutiny is appropriate. However, many Circuit Courts have applied intermediate scrutiny. Either way, rational basis was rejected in Heller. So applying strict scrutiny, or intermediate scrutiny, the Court must assess how important the government’s asserted interest is to permit a deprivation of individual liberty.

This is where The Constitutionality of Social Cost comes in. The City’s argument will go something like this: oh well, New York City is a high crime, urban area. There is more violence in New York City, and we have a stronger interest in ensuring that guns are only given to the most responsible citizens. In other words, they mimic Justice Breyers dissents from Heller and McDonald. Breyer argued, and in my estimation the majority did not dispute, that in high-crime urban areas, Second Amendment rights can be curtailed. In other words, the Second Amendment can mean different things in different places. In light of this “compelling” or “important” interest, the state will say that regulation is “narrowly tailored” or “rationally related” and survives the respective level of scrutiny.

I disagree with the asserted interest is sufficient. As I wrote, the Second Amendment does not have a geography clause; or more precisely, the right to keep and bear arms is not a locational right.

Do constitutional rights mean different things in different places? In two primary contexts—First and Fourth Amendment cases—the Court considers location to determine the content of rights. These locational constitutional rights must be distinguished from the Second Amendment jurisprudence the dissenters propose, and the majority fails to rebut. In both of these contexts, geography is but one factor that must accompany an ex post observation of a cognizable act. In contrast, as Breyer explains, geography—such as a “high crime area,” however that is defined—by itself could be assessed ex ante to deprive law abiding citizens, who have engaged in no activity, of their constitutional rights.

This finding implicitly concedes what Justice Scalia left open in Heller, and what Breyer seeks. Urban cities, based on “local needs and values”—presumably those areas with high crime—can fashion different types of constitutional gun control ordinances based solely on this geographic fact, that is, in no way based on any cognizable act of individuals posing threats to others. Does this suggest that a law restricting a constitutional right in an urban high-crime area would be unconstitutional elsewhere? Not necessarily. But combined with the failure to rebut Breyer’s dissent, this dicta gives judge’s a license to grant a “[s]afe harbor” for such location-based laws.

In this sense, the Equal Protection clause can be used to challenge Second Amendment regulations that vary based on geographic location.

The Court’s opinion in Illinois Elections Board v. Socialist Workers Party supports this notion. When a fundamental right is at stake, The Court found that the Illinois Election Code, which required independent candidates and new political parties to obtain more than 25,000 signatures in Chicago, and fewer statewide, is unconstitutional. Rights burdening a fundamental right can’t treat different people in different parts of the state differently.

Equal Protection for the Second Amendment: sounds like another article I have to add to my list.