March 19, 2007
Private: Guest Blogger: The Reasonable Right to Bear Arms
by Professor Adam Winkler, UCLA School of Law
The decision last week by the U.S. Court of Appeals for the D.C. Circuit in Parker v. District of Columbia has garnered considerable media attention and public comment. Breaking with 70 years of U.S. Supreme Court precedent, the decision held that the Second Amendment protected an individual right to bear arms—rather than a collective right of states to maintain militias free from government interference—and invalidated Washington, D.C.’s effective ban on handguns.
The Supreme Court may take up the question next term and many people suspect the Justices will agree that the Second Amendment guarantees an individual right. If the Court so rules, the results may not be the boon to the gun rights movement that the National Rifle Association and other “shooters” imagine. Most gun control will likely remain constitutionally permissible.
With any individual right, the most important issue is the standard of review used to judge the constitutionality of burdensome legislation. If the courts choose to apply an exacting standard, such as strict scrutiny, laws will tend to be invalidated. If the courts choose a more deferential standard, such as rational basis review, nearly all burdensome laws will be upheld.
While the scholarly debate over the proper meaning of the Second Amendment has raged on for years, almost no attention has been devoted to what standard of review would apply to gun control laws in the event the Court construes the amendment to protect an individual right to bear arms. And yet, in light of the role standards of review play in modern constitutional adjudication, this question is of the utmost significance.
In Parker, Judge Lawrence Silberman’s opinion went on for dozens of pages on the historical meaning of the Second Amendment. On its own, this discussion was embarrassing. Not only did Silberman gloss over the rich historical materials that show the complicated and contested nature of the right to bear arms, he also cited and relied on the infamous Dred Scott v. Sanford decision for support. When did Chief Justice Roger Taney’s opinion, whose historical discussion about the original intent of the Framers to categorically exclude African-Americans from citizenship has been condemned as inaccurate and unjust for a century and a half, become a reliable source of wisdom about the original meaning of the Constitution?
Perhaps even more troubling was the long-winded opinion’s punt on the standard of review question. The court’s analysis was little more than a statement that First Amendment-like standards should apply and an insistence that traditional gun control laws, such as registration requirements and bans on possession by felons, would nonetheless remain constitutional.
Should the Supreme Court hear the appeal in Parker, it will have to do a more thorough job of articulating a Second Amendment standard of review. And what standard will that be?
The answer lies in state constitutional law. Whatever the uncertainty about the scope and meaning of the Second Amendment, in state constitutional law the individual right to bear arms is very well established. Forty-two states have constitutional provisions guaranteeing an individual right to bear arms and hundreds of state court decisions have weighed in on the constitutionality of gun control under those provisions. The state courts uniformly apply a single standard of review: a deferential reasonableness test similar in effect to rational basis review.
The reason for this type of deferential scrutiny is not hard to imagine. Gun control laws serve the overwhelmingly important government interest in public safety. With public safety as the motive, gun control laws are not immediately suspect—unlike laws employing racial classifications or burdening political speech rights—and thus any form of heightened review is inappropriate. As the Supreme Court explained in Cleburne v. Cleburne Living Center, when some legislation in an area is “plainly legitimate,” the “predicate” for “heightened review” is lacking. In the Second Amendment context, the text itself (“a well-regulated militia”) recognizes the legitimacy of at least some legislative oversight.
One might respond that the Second Amendment should receive strict scrutiny protection because the right to bear arms is part of the Bill of Rights or should be considered a “fundamental right.” But many provisions of the Bill of Rights do not trigger strict scrutiny, such as the Fourth, Sixth, Seventh, and Eighth Amendments. And even “fundamental rights” only occasionally trigger such demanding judicial review; more deferential standards are used for content-neutral speech restrictions, most free exercise burdens, restrictions of property rights, and for laws discriminating on the basis of sex and disability.
What has been the practical impact of the reasonable regulation standard used in state constitutional law? Since World War II, a grand total of four gun control laws have been invalidated under state right-to-bear-arms provisions.
The types of laws invalidated were uncommonly bad laws that, given a right to bear arms, surely went too far. Three of the four laws invalidated banned the transportation of firearms, even if unloaded. As one state court recognized, under such a law, one could purchase a firearm but not bring it home. A person could not bring the gun to a repair shop if broken nor take it to the countryside for lawful hunting. If the owner of the gun moved residences, under the strict language of these laws the owner had to leave the weapon behind.
In contrast, the state courts uphold every other type of gun control law: assault weapons bans, felon possession bans, discretionary permitting schemes, bans on concealed carry, bans on transportation of loaded weapons, and complete bans on particular types of guns (such as machine guns). So long as the underlying right is not “nullified” or “destroyed,” courts will uphold gun control laws. The review here is reasonable in theory and extremely minimal in fact.
The Supreme Court would be wise to follow the consistent, uniform pattern of deferential scrutiny. The state courts have decades (in some cases, centuries) of experience with the right to bear arms and all of them, despite considerable variation in demographics and culture, apply the exact same standard. The neophyte Court, just venturing into the right to bear arms field, should not upset this established jurisprudence, especially with an untested standard that truly interferes with legitimate governmental attempts to preserve public safety.