Second Amendment

  • February 27, 2017
    Guest Post

    by Joseph Blocher, Professor of Law, Duke Law School

    On February 21, the U.S. Court of Appeals for the Fourth Circuit rejected a Second Amendment challenge to Maryland’s ban on military-style “assault weapons” and detachable large-capacity magazines. The 10-4 en banc decision in Kolbe v. Hogan is a victory for gun regulation advocates. But it is also a case about alternatives: the court’s two alternative holdings, and the significance of the alternative “Arms” left available by Maryland’s statute.

    The central jurisprudential debate will be whether Kolbe is faithful to the Supreme Court’s landmark decision in District of Columbia v. Heller, which held that the Second Amendment protects an individual right to keep and bear arms for private purposes, the “core” of which is self-defense. Heller also emphasized that a potentially wide range of gun regulation is constitutional, including bans on “dangerous and unusual” weapons—a class, the Court suggested, that might be equated with those not in “common use” for lawful purposes.

    In the decade since Heller, lower courts have almost unanimously adopted a two-part doctrinal test to evaluate the constitutionality of gun regulations. The first part of that test asks whether the relevant gun, person, or action falls within the scope of the Second Amendment—not all of them do, just as not all speech acts count as “speech” for purposes of the First. Felons, the mentally ill, and weapons of mass destruction generally fall entirely outside the scope of the right. If the Second Amendment is implicated, the second question is whether the regulation’s burdens are justifiable.

    The circuit courts have uniformly upheld assault weapons bans, but they’ve typically done so using the second part of the test—that is, by assuming that assault weapons are constitutional “Arms,” but that they can nonetheless be banned. Kolbe is notable because the court relied on both parts of the test, holding that the regulated guns and magazines fall outside the scope of the Second Amendment, and also that the ban would be constitutional even if they didn’t.

  • February 24, 2017
    Guest Post

    by Joseph Blocher, Professor of Law, Duke Law School

    Last week, the en banc Eleventh Circuit struck down a Florida law limiting doctors’ freedom to speak to their patients about guns. The decision in Wollschlaeger v. Governor—also known as the “Docs v. Glocks” case—is a victory for the First Amendment, and no threat to the Second.

    The American Medical Association, American Academy of Pediatrics and American Academy of Family Physicians all encourage their members to ask patients about firearms in the home, and to stress the importance of firearm safety. In 2011, based on what the court characterized as “six anecdotes” of patients complaining about doctors’ questions or comments about guns, Florida adopted the Firearms Owners’ Privacy Act, which restricted doctors’ ability to speak with their patients about firearms.

    As Eugene Volokh has explained, the law limited doctors’ ability to ask patients whether they own guns, generally forbade them to record disclosed information about gun ownership, and banned them from “unnecessarily harassing a patient about firearm ownership during an examination.”

    Each of these provisions, the Eleventh Circuit held, violates the First Amendment—even if they are not considered to be viewpoint-discriminatory, and even if evaluated under heightened rather than strict scrutiny. (The court severed and upheld a separate provision providing that doctors “may not discriminate against a patient based solely upon the patient’s exercise of the constitutional right to own and possess firearms or ammunition.”)

    Free speech advocates will find this result unsurprising, especially in light of the Supreme Court’s decision 2015 in Reed v. Town of Gilbert, which indicated a broad scope for the content-discrimination principle and the strict scrutiny that comes with it. And yet Wollschlaeger has drawn a great deal of attention, in part due to the common misperception that it presents a conflict between the First and Second Amendments.

  • January 29, 2016

    by Jim Thompson

    In The Orange County Register, ACS Board member Erwin Chemerinsky defends the constitutionality of President Obama’s executive action on gun control.

    Jill Dash, ACS’s vice president of strategic engagement, highlights the current judicial vacancy crisis on Bankrate.

    Rachel M. Cohen at The American Prospect considers how Cruz-Guzman v. State of Minnesota, a provocative civil rights case, could change the landscape of American education. The statement of the plaintiffs can be read here

    At Jacobin, John Patrick Leary says the Flint water contamination crisis underscores “the human toll of running a state like a business,” writing, “when a government is run like a business, much of its infrastructure and personnel become superfluous.”

    Detroit school teachers’ “sick outs” and the Flint water crisis highlight the disastrous consequences of Michigan’s emergency manager laws, opines Julia Lurie at Mother Jones.

    In The American Prospect, Eliza Newlin Carney reviews a score of new books examining the growing influence of dark money in politics, including Rick Hasen’s Plutocrats United and Derek Cressman’s When Money Talks. Hasen’s ACSblog BookTalk can be read here, and Cressman’s BookTalk can be found here

  • January 22, 2016

    by Christopher Durocher

    Presidents Obama’s executive actions on guns, announced this month, have drawn unfair and unwarranted criticism, according to Erwin Chemerinsky, dean of the University of California, Irvine School of Law and one of the nation’s leading legal scholars. In testimony submitted to the Senate in advance of a hearing held this past Wednesday, Chemerinsky, who is also a member of ACS’s board of directors, explains that the president’s actions “are clearly constitutional. The new policies announced by President Obama are relatively modest and are entirely focused on enforcing existing statutes. Thus all are within the permissible scope of executive power without infringing the Second Amendment.”

    Among the president’s executive actions, Chemerinsky notes, is guidance from the Bureau of Alcohol, Tobacco and Firearms (ATF) that “clarifies which gun sellers are ‘engaged in the business’ of dealing firearms, and therefore must obtain federal licenses and conduct background checks on would-be gun purchasers” and directives to the ATF and FBI to “prosecute individuals who illegally attempt to obtain firearms and also to inform state law enforcement whenever a prohibited person in their state fails a background check.” Chemerinsky describes both measures as “common sense” efforts to better enforce existing federal law. He further notes that, “Not one federal court ever has questioned the constitutionality of the federal laws being enforced by President Obama’s executive order.”

  • January 12, 2016

    by Jim Thompson

    Questions asked by the Supreme Court’s conservative bloc during oral argument in Friedrichs v. California Teachers Association suggest the Court is ready to render a decision that would significantly weaken public employee unions, writes Richard D. Kahlenberg in The New York Times.

    In response to President Obama’s recent executive orders, Nathalie Baptiste at The American Prospect discusses past and present congressional barriers to effective, robust research on the impact of guns.

    On Friday, New York City Police Sgt. Kizzy Adonis was served with internal disciplinary charges for her role in the violent confrontation that led to the death of Eric Garner, reports Al Baker in The New York Times. Adonis was placed on modified duty, stripped of her gun and badge, and barred from street duty while she awaits further judgment from a departmental judge. Officer Daniel Pantaleo, the individual who choked Garner to death, currently faces no charges.

    On Monday, Judge L. Felipe Restrepo was finally confirmed to fill a long-standing vacancy on the Third Circuit Court of Appeals, says Tracie Mauriello in the Pittsburgh Post-Gazette. A new statement from Sen. Patrick Leahy (D-Vt.) blasts lawmakers for obstructing the judicial nomination process and weakening the nation’s judicial system.