Who bears the burden under the Second Amendment?

April 22nd, 2013

Eugene links to a recent N.D. Ill. opinion that does a nice job summarizing how, under the 7th Circuit’s precedents, it is the government that bears the burden to justify the constitutionality of gun control laws.

Although the Supreme Court [in Heller] explained that laws regulating the commercial sale of firearms are “presumptively lawful,” it did not purport to exempt those laws from constitutional scrutiny…. The Seventh Circuit’s analysis in United States v. Williams, 616 F.3d 685 (7th Cir. 2010), is particularly instructive. Williams involved 18 U.S.C. § 922(g)(1)’s ban on the possession of firearms by felons—one of the other “presumptively lawful” regulatory measures specifically identified in Heller. Nonetheless, the Seventh Circuit explained that “the government does not get a free pass”; “it still must prove that the ban is constitutional, a mandate that flows from Heller itself”; and “putting the government through its paces in proving the constitutionality of § 922(g)(1) is only proper.” The Seventh Circuit ultimately applied a form of intermediate scrutiny and upheld § 922(g)(1).

I like the image of putting “putting the government through its paces.” Of course, many courts, even in the 7th Circuit, do not impose this burden on the state.

For example, Justice Breyer would clearly place the burden on the challengers to show that their use of the firearms *is not dangerous* and that the government’s interest doesn’t pass muster. Further, the en banc opinion by Chief Judge Easterbrook in Skoien was overly deferential to the government’s interest, and took great pains to marshall evidence outside the record to make the case for the government. In dissent, Judge Sykes noted “This approach fell far short of the legal heavy lifting normally required to justify criminally punishing the exercise of an enumerated constitutional right.”

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.

In the recent Madigan decision from the 7th Circuit, Judge , Posner is not willing to give a “decisive assist” to the government because the law impacts not dangerous people, but law abiding people.

Illinois has not made that strong showing—and it would have to make a stronger showing in this case than the government did in Skoien, because the curtailment of gun rights was much narrower: there the gun rights of persons convicted of domestic violence, here the gun rights of the entire lawabiding adult population of Illinois.

In constitutional law, the party that bears the burden usually loses. This, and not any other hand-waving about tiers of scrutiny is what counts. This is the framework I laid out in The Constitutionality of Social Cost with respect to burdens and the Second Amendment:

I propose a framework that provides a judicially man‐ ageable standard for courts to consider these issues. First, it is essential to recognize that the analysis the Court permitted in Heller is unprecedented, and does not fall into any of the three categories discussed above. Second, in order to reconcile the right to keep and bear arms with its brethren in the Bill of Rights, I discuss five questions inherent in all gun cases—what, where, when, who, and why. The answers to these questions lead to the framework I propose: Second Amendment chal‐ lenges should be bifurcated based on the social costs involved and the actor’s propensity for violence. For the deprivation of the liberty of persons lacking a propensity for violence, the burden of persuasion should remain with the state, and stricter judicial scrutiny is warranted. For those who have demon‐ strated a propensity for violence and who are likely to inflict harm in the future, such as violent felons, the burden should rest with the individual, and less exacting judicial scrutiny is appro‐ priate. Under such an approach, which fits snugly inside Heller’s rubric, the Second Amendment can develop and assume its equal station among our most cherished constitutional rights.