Volokh Blog Post on McDonald and Incorporation of the Second Amendment

McDonald v. City of Chicago and the Standard of Review for Gun Control Laws

Eugene Volokh • June 28, 2010 5:40 pm

I don’t have much that’s original or interesting to say about the historical and jurisprudential arguments made by the majority and the dissent in McDonald v. City of CHicago. But I did want to say a few words about the possible implications of McDonald. Let me begin with the question: How could McDonald affect the way that courts evaluate the constitutionality of gun controls, whether federal, state, or local (beyond the obvious point that there are now federal constitutional constraints and state and local gun laws)?
To begin with, let me repeat what I wrote about before, in my Implementing the Right to Keep and Bear Arms for Self-Defense article: Courts shouldn’t simply ask whether right-to-bear-arms claims should be subject to “strict scrutiny,” “intermediate scrutiny,” an “undue burden” test, or any other unitary test. Rather, as with other constitutional rights, courts should recognize that there are four different categories of justifications for a restriction on the right to bear arms:

1. Limited Scope: A restriction might not be covered by the constitutional text, the original meaning of the text, the traditional understanding of the text’s scope, the background legal principles establishing who is entitled to various rights, or the categorical exceptions set forth by binding precedent (such as Heller’s statement that bans on gun possession by felons, bans on concealed carry, and several other kinds of gun controls are constitutional).
2. Slight Burden: A restriction might only slightly interfere with rightholders’ ability to get the benefits that the right secures, and thus might be a burden that doesn’t rise to the level of unconstitutionally “infring[ing]” the right.
3. Reducing Danger: A restriction might reduce various dangers (in the case of arms possession, chiefly the dangers of crime and injury) so much that the court concludes that even a substantial burden is justified.
4. Government as Proprietor: The government might have special power stemming from its authority as proprietor, employer, or subsidizer to control behavior on its property or behavior by recipients of its property.

But this having been said, the “reducing danger” justifications are indeed often evaluated under intermediate or strict scrutiny, and some lower federal courts dealing with Second Amendment challenges after Heller have indeed applied these standards of review. And while McDonald doesn’t purport to discuss what standard of review courts should apply, it might still affect the matter.

A. The incorporation precedents under the Due Process Clause generally hold that the Fourteenth Amendment applies against the states those rights that are “fundamental to our scheme of ordered liberty and system of justice.” The plurality held that the Second Amendment is incorporated by concluding that the right is indeed fundamental; and Justice Thomas’s concurrence also referred to the right as fundamental.
Now as it happens there is also talk in the Court’s precedents that restrictions on rights should be evaluated under strict scrutiny if those rights are fundamental. I don’t think that’s quite right (partly for reasons I explain in my article). But the Court has said this, and as a result some lower courts have concluded that restrictions on the right to bear arms should be evaluated only under intermediate scrutiny, because the right isn’t really fundamental. Here, for instance, is a passage on the subject from Heller v. D.C. (II), 2010 WL 1140875 (D.D.C. Mar. 26), which dealt with D.C.‘s new gun control law:

[T]he Heller [(I)] majority suggested that one of the two “traditionally expressed levels” of heightened scrutiny — intermediate scrutiny and strict scrutiny — should be applied to laws implicating the Second Amendment right. Thus, the court turns to an analysis of whether intermediate scrutiny or strict scrutiny is the most appropriate standard to be used to evaluate restrictions on the exercise of the Second Amendment right. As many courts have recognized, the Supreme Court did not explicitly hold that the Second Amendment right is a fundamental right, despite the fact that it stated that “[b]y the time of the founding, the right to have arms had become fundamental for English subjects” and noted that Blackstone “cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen.” If the Supreme Court had wanted to declare the Second Amendment right a fundamental right, it would have done so explicitly. The court will not infer such a significant holding based only on the Heller majority’s oblique references to the gun ownership rights of eighteenth-century English subjects.

Partly because of this (though also based on other arguments), the court concluded that “intermediate scrutiny is the most appropriate standard of review to apply to the challenged laws.” See also United States v. Yanez-Vasquez, 2010 WL 411112 (D. Kan. Jan. 28) (“The court declines to apply strict scrutiny, since ... Heller did not expressly find firearm possession to be a fundamental right.”); United States v. Jones, 673 F. Supp. 2d 1347 (N.D. Ga. 2009) (though this involved gun possession by a felon, which, according to Heller, is outside the Second Amendment’s scope); United States v. Miller, 604 F. Supp. 2d 1162 (W.D. Tenn. 2009) (same). McDonald’s conclusion that the right is fundamental might change this, and might lead courts to apply strict scrutiny rather than intermediate scrutiny. I’ve argued in my article that the intermediate/strict scrutiny distinction might be less helpful than might appear (and I’ve more broadly argue that intermediate scrutiny and strict scrutiny themselves don’t provide a terribly helpful way of framing the discussion). But my sense is that judges do care about the distinction; if this is so, then McDonald’s conclusion that the right as fundamental could prove important.
B. The Court also writes, responding to Justice Breyer’s dissent,

Justice Breyer is incorrect that incorporation will require judges to assess the costs and benefits of firearms restrictions and thus to make difficult empirical judgments in an area in which they lack expertise. As we have noted, while his opinion in Heller recommended an interest-balancing test, the Court specifically rejected that suggestion. “The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon.”

If one takes this seriously, then this suggests that the government might not be able to prevail with “reducing danger” arguments at all. Say, for instance, that the government argues that restrictions on handgun possesion by 18-to-20-year-olds are constitutional, based on data about gun crime by people in that age group (an argument that the district court seemed to accept, though in a somewhat procedurally complicated context, in United States v. Bledsoe, 2008 WL 3538717, *4 (W.D. Tex. Aug. 8), citing and reaffirming post–Heller the court’s earlier decision at 2008 WL 3538717, *4 (W.D. Tex. Mar. 20)). Under a standard intermediate or even strict scrutiny framework, this sort of argument might well work, on the theory that the government has shown that the law is substantially related to an important government interest in protecting life and preventing crime, or even that the law is narrowly tailored to a compelling government interest. But if indeed courts have no need “to make difficult empirical judgments” about the “costs and benefits of firearms restrictions,” because the “enumeration of the right takes out of the hands of government ... the power to decide on a case-by-case basis whether the right is really worth insisting upon.” (Compare Craig v. Boren, 424 U.S. 190, 203–04 & 208 n.22 (1976), which seems to largely but not entirely close the door to arguments that sex or race classifications would be constitutional when sex or race is a statistically sound proxy for some bad behavior.)
The same might be true with regard to arguments that bans on gun possession by people who are under domestic restraining orders pass intermediate or strict scrutiny, and so on. Perhaps such bans might still be upheld on the grounds that the historically approved scope of the right is limited to “peaceable citizens,” and excludes not just convicted felons but also people for whom there was a showing, by a preponderance of the evidence, that they had committed a violent misdemeanor (or something like that) and are likely to pose a continuing dangers. Or perhaps there are other reducing-danger arguments that could be approved under intermediate or strict scrutiny but without the use of statistical evidence. But if we take seriously the Court’s assertion that the Second Amendment bars courts from engaging in empirical decisionmaking about the supposed efficacy of gun controls, then it sounds like “reducing danger” arguments for gun controls become much harder to make.
These are just tentative predictions; I may well change my mind after thinking more about the decision, and in any event courts might well not put quite this much stock in the particular McDonald passages that I refer to. Still, I thought I’d flag them in case they’re helpful, interesting, or both.

New Tenth Amendment Case

From the New York Times (Link):

A 10th Amendment Drama Fit for Daytime TV

By ADAM LIPTAK

WASHINGTON
The Tea Party’s favorite part of the Constitution — the 10th Amendment, which limits federal power — arrived at the Supreme Court last week. In keeping with the spirit of the times, it came wrapped in the plot of a soap opera.
The amendment has played a starring role in challenges to the recent federal health care legislation. But the justices have not made the task of divining their own views particularly easy.
Their most recent consideration of where Congress’s constitutional power ends came in a case involving the civil commitment of sex offenders.
Now the court has decided to consider what to do about a woman hellbent on poisoning her best friend.
The woman, Carol A. Bond of Lansdale, Pa., was at first delighted to learn that her friend was pregnant. Ms. Bond’s mood darkened, though, when it emerged that her husband was the father. “I am going to make your life a living hell,” she said, according to her now-former friend, Myrlinda Haynes.
Ms. Bond, a microbiologist, certainly tried. On about two dozen occasions, she spread lethal chemicals on her friend’s car, mailbox and doorknob.
Ms. Haynes, who managed to escape serious injury, complained to the local police. They did not respond with particular vigor. After checking to see whether the white powder on her car was cocaine, they advised her to have it cleaned.
Federal postal inspectors were more helpful. They videotaped Ms. Bond stealing mail and putting poison in the muffler of Ms. Haynes’s car.
When it came time to charge Ms. Bond with a crime, federal prosecutors chose a novel theory. They indicted her not only for stealing mail, an obvious federal offense, but also for using unconventional weapons in violation of the Chemical Weapons Convention of 1993, a treaty aimed at terrorists and rogue states.
Had she been prosecuted in state court, Ms. Bond would most likely have faced a sentence of three months to two years, her lawyers say. In federal court, she got six years.
Ms. Bond’s argument on appeal was that Congress did not have the constitutional power to use a chemical weapons treaty to address a matter of a sort routinely handled by state authorities.
She relied on the 10th Amendment, the one so beloved by Tea Party activists. It says that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
A unanimous three-judge panel of the federal appeals court in Philadelphia said Ms. Bond’s argument was a serious one of “first impression.” Then the court ducked answering the question by saying Ms. Bond was not entitled to raise it. Only states, it said, can mount 10th Amendment challenges.
Paul D. Clement, a solicitor general in the administration of President George W. Bush, now represents Ms. Bond. He called the idea that Ms. Bond lacks standing to challenge the law under which she was imprisoned “startling” and “absurd.”
More broadly, Mr. Clement wrote, the Bond case is an instance of an issue that has lately united conservatives, libertarians and liberals. They say there are too many federal crimes, that they are often simultaneously vague and harsh, and that they undermine state authority to maintain public safety.
Mr. Clement said his client’s poisonous rampage was not “successful or particularly sophisticated.”
“Domestic disputes resulting from marital infidelities and culminating in a thumb burn are appropriately handled by local law enforcement authorities,” Mr. Clement wrote. “Ms. Bond’s assault against her husband’s paramour did not involve stockpiling chemical weapons, engaging in chemical warfare” and the like, he added.
In the appeals court, federal prosecutors had embraced the idea that Ms. Bond was powerless to attack her conviction on 10th Amendment grounds. But the federal government reversed course in the Supreme Court.
“A criminal defendant has standing to defend herself by arguing that the statute under which she is being prosecuted was beyond Congress’s Article I authority to enact,” Acting Solicitor General Neal K. Katyal told the justices.
Ms. Bond has been in prison for more than three years. Given that two sides agree her case was mishandled, the Supreme Court might have summarily reversed the appeals court’s decision. Instead, it will hear arguments in the case in the next few months and probably issue a decision by June.
That means the case of the poisoned paramour, known formally as Bond v. United States, No. 09-1227, will among the more closely watched this term.

Contemporary View of National Power

Here is a discussion of a recent Gallup Poll (Link):

"Americans' Image of "Federal Government" Mostly Negative

More than 7 in 10 describe government in negative terms

by Jeffrey M. Jones

PRINCETON, NJ -- More than 7 in 10 Americans use a word or phrase that is clearly negative when providing a top-of-mind reaction to the federal government.
A Sept. 20-21 USA Today/Gallup poll asked respondents what they would say "if someone asked you to describe the federal government in one word or phrase." The accompanying chart shows the results in graphic form, with the words or phrases displayed according to how frequently they are mentioned.
Additionally, the complete list of verbatim responses to the question, along with basic demographic information on respondents, is available here.

Overall, 72% of responses about the federal government are negative, touching on its inefficiency, size, corruption, and general incompetence, with the most common specific descriptions being "too big," "confused," and "corrupt."
Ten percent of responses are clearly positive, using words such as "good," while the remaining 18% are neutral or mixed.
The generally negative top-of-mind images of the federal government are consistent with the poor ratings the government receives in Gallup's annual update on the images of business and industry sectors. In the most recent update, from August, 58% rated the federal government negatively and 26% positively.
Gallup and USA Today will explore Americans' views of the role of the federal government further in a summit to be held at Gallup world headquarters in Washington, D.C., on Oct. 13, 2010. The event will offer polling and political experts' takes on what's behind the negative image of the federal government, and analysis of what the American people want -- and don't want -- their government to do for them. Learn more or register."

Maybe this explains at least some of the recent interest in the 10th Amendment.

Funeral Picketing Case Argued

This is a Con Law II issue, so this post is just for your information.

From How Appealing:

"Justices struggle with free speech, funeral protests": Joan Biskupic of USA Today has this news update.
Jess Bravin of The Wall Street Journal has a news update headlined "High Court Hears Free-Speech Case."
The Topeka Capital-Journal has a news update headlined "Justices question picket practices."
James Vicini of Reuters reports that "Court considers anti-gay protests at funerals."
Greg Stohr of Bloomberg News reports that "Church's Funeral Protest Tests Free-Speech Limits at U.S. Supreme Court."
At "SCOTUSblog," Lyle Denniston has a post titled "Argument recap: Does emotion win?"
And The Washington Post has a news update headlined "Westboro Baptist Church case draws protesters at Supreme Court."

You can access the transcript of today's U.S. Supreme Court oral argument in Snyder v. Phelps, No. 09-751, by clicking here.

No Class on Friday October 22

We will need to schedule a make-up.

I am teaching a CLE session at the Nebraska State Bar Meeting on Friday October 22 in LaVista.