The Constitutionality of Social Cost and Ezell v. Chicago

July 6th, 2011

While I was absolutely thrilled that Judge Sykes cited Pandora’s Box in Ezell v. Chicago (analysis here), perhaps the most interesting aspect–to me at least–is how closely her analysis, and the analysis by the concurring Judge Rovner, tracked the arguments I advanced in The Constitutionality of Social Cost.

Bifurcate Challenges based on Propensity for Violence

First, Judge Sykes sought to bifurcate Second Amendment challenges between dangerous people, and non-dangerous people.

Judge Sykes approved of the “intermediate scrutiny” applied in United States v. Skoien, a criminal prosecution under 18 U.S.C. 922(g)(9).

In Skoien we required a “form of strong showing”—a/k/a “intermediate scrutiny”—in a Second Amendment challenge to a prosecution under 18 U.S.C. § 922(g)(9), which prohibits the possession of firearms by persons convicted of a domestic‐violence misdemeanor. 614 F.3d at 641. We held that “logic and data” established a “substantial relation” between dispossessing domestic‐violence misdemeanants and the important governmental goal of “preventing armed mayhem.” Id. at 642. Intermediate scrutiny was appropriate in Skoien because the claim was not made by a “law‐abiding, responsible citizen” as in Heller, 554 U.S. at 635; nor did the case involve the central self‐defense component of the right, Skoien, 614 F.3d at 645.

In Skoien, the burden effectively rested with the individual to show why the categorical ban was not appropriate. Skoien failed this burden (unsurprising).

In contrast, Mr. Ezell–like Mr. Heller, and Mr. McDonald–was a “law‐abiding, responsible citizens.” A different analysis–that is heightened (really strict) scrutiny applies. In cases with a non-violent applicant, the state bears the burden of justifying the infringement on individual liberty.

Here, in contrast, the plaintiffs are the “law‐abiding, responsible citizens” whose Second amendment rights are entitled to full solicitude under Heller, and their claim comes much closer to implicating the core of the Second Amendment right. The City’s firing‐range ban is not merely regulatory; it prohibits the “law‐abiding, responsible citizens” of Chicago from engaging in target practice in the controlled environment of a firing range. This is a serious encroachment on the right to maintain proficiency in firearm use, an important corollary to the meaningful exercise of the core right to possess firearms for self‐defense. That the City conditions gun possession on range training is an additional reason to closely scrutinize the range ban. All this suggests that a more rigorous showing than that applied in Skoien should be required, if not quite “strict scrutiny.”

This analysis tracks very closely what I discussed in The Constitutionality of Social Cost, where I propose a bifurcation of scrutiny based on the individual’s propensity for violence (pp. 91-95).
For “law‐abiding, responsible citizens,” the burden rests with the state to justify the deprivation of the liberty interest (strict scrutiny). For those who have shown a propensity for violence (and given the state a reason to be cautious), the burden rests with the individual to show why a categorical ban (such as under 922(g)(9) does not apply).

Although the statutes at issue in Skoien and other cases considering the rights of former felons to possess arms may lend themselves to a categorical approach,547 the statues at issue in McDonald and Heller denied arms to people who gave no indication that they would use the guns for harm. In such cases, the burden should fall on the State. (pp 94-95).

The focus is not just on law-abiding citizens, but a person’s propensity to harm others–and therefore his ability to harm others. This distinction fits nicely with the Ezell/Skoien frameworks. Should this case go en banc (a possibility, notwithstanding my view that the issue is not moot following Chicago’s new ordinance permitting ranges), this may help to flesh out this distinction between law-abiding and non law-abiding citizens.

Burden of Proof with Actual Evidence

Second, Judge Sykes requires that the burden be proven with non-speculative, evidence of cognizable social harms.

To be appropriately respectful of the individual rights at issue in this case, the City bears the burden of establishing a strong public‐interest justification for its ban on range training: The City must establish a close fit between the range ban and the actual public interests it serves, and also that the public’s interests are strong enough to justify so substantial an encumbrance on individual Second Amendment rights. Stated differently, the City must demonstrate that civilian target practice at a firing range creates such genuine and serious risks to public safety that prohibiting range training throughout the city is justified.

Indeed, on this record those concerns are entirely speculative and, in any event, can be addressed through sensible zoning and other appropriately tailored regulations.

This differs from the approach taken by Justice Breyer in dissent, whereby studies about what *could* happen in the future were sufficient to deprive McDonald of his constitutional rights. As I noted in Social Cost:

Under our current Second Amendment jurisprudence people who have shown no propensity for violence may be denied the exercise of their constitutional right without any specific reason, based solely on legislative judgments grounded on disputed statistics505 that show a person with a firearm may be likely to engage in violence.506 This ex ante deprivation of liberty with restrained judicial oversight is unprecedented . . .

Such an approach, with rejects ex ante studies, sounds in strict scrutiny (as opposed to Justice Oliver Wendell Breyer’s dissent in EMA where he went outside the record to find studies to support his approach).

Statistics and Common Sense

Third, there is a dispute over the role of statistics and common sense between Judge Sykes and Judge Rovner.

Judge Sykes is not willing to accept the City’s speculative assertions–not backed up by any concrete facts–that permitting ranges will result in violence.

The City maintains that firing ranges create the risk of accidental death or injury and attract thieves wanting to steal firearms. But it produced no evidence to establish that these are realistic concerns, much less that they warrant a total prohibition on firing ranges. In the First Amendment context, the government must supply actual, reliable evidence to justify restricting protected expression based on secondary public‐safety effects. By analogy here, the City produced no empirical evidence
whatsoever and rested its entire defense of the range ban on speculation about accidents and theft.

In contrast, Judge Rovner does not need studies, and based on “common sense” finds that guns are dangerous. She calls Judge Sykes’ approach “naive.”

The majority’s summary dismissal of the City’s concern for public safety related to live gun ranges is to my mind naive. One need only perform a simple internet search on “gun range accidents” to see the myriad ways that gun owners manage to shoot themselves and others while practicing in these supposedly safe environments. From dropping a loaded gun in a parking lot to losing control of a strong weapon on recoil, gun owners have caused considerable damage to themselves and others at live gun ranges. To say that the City’s concerns for safety are “entirely speculative” is unfounded. Ante, at 46. At this stage of the litigation, the City has not yet had an opportunity to develop a full record on the safety issues raised by placing live gun ranges in an urban environment. Common sense tells us that guns are inherently dangerous; responsible gun owners treat them with great care. Unfortunately, not all gun owners are responsible. The City has a right to impose reasonable time, place and manner restrictions on the operation of live ranges in the interest of public safety and other legitimate governmental concerns.

This dynamic between statistics,common sense, and social cost, was recently explored in a Supreme Court case, (aptly named),  Sykes v. United States. As I previously discussed:

What role should statistics of social play in judicial decision making? In Sykes v. United States, in order to determine whether a vehicular flight from the police is likely to be dangerous, the majority opinion from Justice Kennedy, as well as the concurring opinion from Justice Thomas, heavily relied on empirical data.

Justice Kennedy noted that “although statistics are not dispositive, here they confirm the commonsense conclusion that Indiana’s vehicular flight crime is a violent felony.” Justice Thomas wrote that “common experience and statistical evidence confirm the “potential risk” of intentional vehicular flight.”  Justice Kagan found that the data was inconclusive, but noted the “majority’s intuition that dangerous flights outstrip mere failures to stop—that the aggravated form of the activity is also the ordinary form—seems consistent with common sense and experience.”

Here, we have 8 Justices who have different views about statistical data supporting social costs from vehicular flight, but in large part due to “commonsense conclusions,” “common experience,” “intuition” and “common sense and experience,” they agree on the outcome. None of these statistics were even introduced at trial, or admitted into evidence. Should courts be able to take judicial notice of these statistics because they conform to common sense?

What is the proper role for courts to consider statistics and common sense to illustrate social costs, such as dangers from vehicular flight?

The reliance of experts, and ex ante studies, is a key to judging the constitutionality of social cost.

Presumption of Liberty

Judge Sykes reads Heller as rejecting a “presumption of constitutionality.”

We proceed, then, to the second inquiry, which asks whether the City’s restriction on range training survives Second Amendment scrutiny. As we have explained, this requires us to select an appropriate standard of review. Although the Supreme Court did not do so in either Heller or McDonald, the Court did make it clear that the deferential rational‐basis standard is out, and with it the presumption of constitutionality. Heller, 554 U.S. at 628 n.27 (citing United States v. Carolene Prods., 304 U.S. 144, 152 n.4 (1938)). This necessarily means that the City bears the burden of justifying its action under some heightened standard of judicial review.

This is key. Judge Sykes places the overall burden on the state to justify this infringement of individual liberty. Though, this presumption only applies to rights in the Core (and not the pennumbra, as I’ve called it, or the margin) of the Second Amendment.

Labels aside, we can distill this First Amendment doctrine and extrapolate a few general principles to the Second Amendment context. First, a severe burden on the core Second Amendment right of armed self‐defense will require an extremely strong public‐interest justification and a close fit between the government’s means and its end. Second, laws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easily justified. How much more easily depends on the relative severity of the burden and its proximity to the core of the right.

Unfortunately, Joe Blocher’s article on categoricalism and balancing in the Second Amendment is not cited, though it should be.

I’ll have lots more about this article in due time.