The Second Amendment During States of Emergency and Social Cost

April 3rd, 2012

Eugene Volokh links to another Gura-Second-Amendment victory from the Eastern District of North Carolina in Bateman v. Perdue (E.D.N.C. Mar. 29, 2012). North Carolina had a statute on the books that banned the transportation of guns during a state of emergency. The Court found this statute facially unconstitutional.

A few observations. First, seeing how this case arose in the Fourth Circuit, it is fascinating how the Court effectively ignored Wilkinson’s controlling opinion in Masciandaro–something the district court of Maryland did in finding that the Second Amendment applies outside the home.

In Heller, the Supreme Court found that the Second Amendment includes right to ‘protect [] [onself] against both public and private violence,’ thus extending the right in some  form to wherever a person could become exposed to public or private violence.” United States v. Masciandaro, 638 F.3d 458, 467 (4th Cir. 2011) (Niemeyer, J., writing separately as to Part III.B) (quoting Heller, 128 S. Ct. at 2799) (alterations in original) (citation omitted). “Moreover, the right to keep and bear arms was found to have been understood to exist not only for self-defense, but also for membership in a militia and for hunting, neither of which is a horne-bound activity.” Id. at 468 (citation omitted) . . .  Therefore, the Second Amendment right to keep and bear arms “is not strictly limited to the horne environment but extends in some form to wherever those activities or needs occur.” Masciandaro, 638 F.3d at 468 (Niemeyer, J., writing separately as to Part III.B)

Didn’t even bother distinguishing Wilkinson. So much for restraint.

Second, the court’s framework focused heavily on the fact that the people who would be disarmed here are “law abiding citizens.” That is, citizens who aren’t likely to harm others.

As in Masciandaro, the statutes involved in this case burden the rights of law abiding citizens. As such, they merit stricter scrutiny than would similar laws targeting felonsl domestic violence misdemeanants or other individuals posing public safety concerns. See Masciandarol 638 F.3d at 470 (noting differences between Masciandaro and Chesterl Masciandaro was law abiding citizen whereas Chester was not, but Chester was in his home whereas Masciandaro was not intermediate scrutiny found applicable in both cases) . . .  .

This prohibition applies equally to all individuals and to all classes of firearms, not just handguns. It is not limited to a certain manner of carrying weaspons or to particular times of the day. Most significantly, it prohibits law abiding citizens from purchasing and transporting to their homes firearms and ammunition needed for self-defense.  . . .

While the bans imposed pursuant to these statutes may be limited in duration, it cannot be overlooked that the statutes strip peaceable, law abiding citizens of the right to arm themselves in defense of hearth and home, striking at the very core of the Second Amendment.

This is a distinction I drew in Social Cost, and that I have seen in a few other opinions. Judges are less likely to be afraid of protecting the rights of those they deem less dangerous.

Third, the Court (unlike the court in Skoien) placed the burden on the state, and not the individual:

That being the case, the emergency declaration statutes are presumed invalid, and defendants bear the burden of rebutting that presumption by showing that the laws are narrowly tailored to serve a compelling government interest. This defendants have failed to do.

And the burden was quite high:

here is no dispute that defendants have a compelling interest in public safety and general crime prevention.  . . .

The problem here is that the emergency declaration statutes, are not narrowly tailored to serve the government’s interest in public safety. They do not target dangerous individuals or dangerous conduct.

As Eugene Volokh notes, regarding scrutiny, it is largely a distinction without a difference depending on how it is tailored:

Note that, as is often the case, the application of “strict scrutiny” can be quite rights-protective or not depending on what one understands “narrow tailoring” to mean. If narrow tailoring requires some plausible reason to believe that the law will on balance help prevent crime and injury, then that requirement will very often be satisfied. If it requires social science proof that the law will on balance help prevent crime and injury, then that requirement will rarely be satisfied, especially in situations such as this: There will rarely be solid studies of the effects of this particular kind of law.

And if, as here, “narrow tailoring” requires that the law not “excessively intrude” on rights, then that might be something like a rule of per se invalidation (at least as to very heavy burdens on the right): The premise of such an approach is that, regardless of whether the restrictions will reduce crime and injury, it is still unconstitutional if it interferes with the core of the right, since the constitutional recognition of the right expresses a judgment that the right must be protected despite the threat it may pose to compelling government interests.