Please please please please please please please. This diary is not intended as a forum for discussing what the Supreme Court, or society in general, should do on any particular question of gun control. My interest is solely in what the Court did do in its decision today -- because it's highly counterintuitive and I haven't seen it discussed elsewhere.
Justice Scalia today authored the majority opinion in District of Columbia v. Heller, in which a 5-4 majority of the Court confirmed the right to keep and bear arms (RKBA) as an individual right.
As many of us argued before the decision, whether the RKBA was individual or collective was not the most important issue at hand. The significant question was, if it is an individual right, how and when and to what extent it could be restricted.
Today, among other things, Scalia wrote that the DC law requiring trigger locks was unconstitutional. What you may not have heard is that this was based on a relative technicality -- a fixable technicality, after which trigger locks would seem to be OK.
In 1975, the District of Columbia enacted the Firearms Control Regulations Act of 1975, which among other things required the following:
* required gun registration
* banned residents from owning handguns and automatic and some semi-automatic weapons, with exceptions granted for firearms registered before 1975 and active and retired police officers
* required (subject to the above exceptions) firearms kept in the home to be "unloaded, disassembled, or bound by a trigger lock or similar device" unless used in a place of business or for recreational activities
(Note: "a trigger lock is a device that is used to prevent a firearm from being discharged while is is in place.")
It was that bill that the Supreme Court considered today.
* * * * * * *
I’m not going to talk at length about one of the most interesting aspects of Heller here: that it does not address the question of whether the Second Amendment RKBA is incorporated against the states, meaning that they to would have to respect the RKBA as well.
I’ll say only this about that: people are making a big deal about Scalia citing some 19th century cases suggesting that it would not be. Don’t be impressed: these cases precede the Supreme Court’s substantial move towards incorporation of constitutional rights through the 14th Amendment, which took place starting the 1950s under the Warren Court. So they are not good guides to future results. Second, Scalia takes pains to talk about limitations about Congress’s power to act through legislation, which makes me wonder whether he believes that the President, acting under executive authority, may paradoxically have some powers that Congress does not.
Instead, I’m going to talk a little about judicial activism, a little about standards of review – largely ignored in Scalia’s opinion – and then will get to the question of exactly what is the status of trigger locks after the Heller opinion.
(1) Judicial activism
Many commentators have already made the point that this is a spectacularly activist decision. Not only does Scalia give the Miller case – which may not have been determinative but which at a minimum deserved careful attention – short shrift, but he probably "invented a new Constitutional right" or two, as conservative critics of the judiciary like to say.
Scalia’s position – which is very muddled – is that while some gun regulation is acceptance, people have a constitutional right to (1) lethal self-defense, at least (2) within the home.
Now, you may be reading this and saying to yourself: "So what? Don’t we know we have a right to self-defense?" Yes, you do – but in law the source of your rights matter. You probably have some right of self-defense by statute, but more generally you have a right to self-defense based on common law – the accretion of court rulings in different areas going all the way back to pre-Revolutionary England – which varies from state to state. For example, some states may limit your right of lethal self-defense. (When you shoot someone, that’s what you’re engaged in, even if you shoot them in the knee. Such injuries do kill people.) Making something a federal constitutional right gives it a greater status, one more likely to defeat other competing interests. You will notice that, as with the words "privacy" and "abortion," "lethal self-defense" does not appear in the Constitution.
Even more strangely, though perhaps not offensively, Scalia says that this constitutional right to lethal self-defense exists within the home. Again – he just made that up. It’s a principle that fits well with the Fourth Amendment (which is still there, more or less) as well as the generalized notion of Constitutionally mandated privacy.
So, next time you here someone complaining about judicial activists, you will have something new to tell them.
(2) Standards of review
(This is quick and basic; if you’re an attorney, you’ll probably want to skip this.)
Most people suspected that the Supreme Court was going to find an individual RKBA present in the Second Amendment – i.e., one that a citizen enjoyed regardless of one’s status as part of a "well-regulated" militia, per the "prefatory clause" of the Second Amendment. That was important, but not more important than the standard of review to be used in assessing government infringements on that right.
Lawyers will often tell you that the standard of review that a court uses to analyze a law will often determine the outcome. The two most common standards of review brought to bear in statutory review are strict scrutiny and rational basis review. In between is an ill-defined family of concepts referred to as intermediate scrutiny.
If a right is does not have specific Constitutional protection – such as your right to drive a car – then the state can limit that right for any rational reason that serves a legitimate government end. The exception would be if the law in question violates 14th Amendment principles of equal protection and due process – which the government can’t do. When conservatives (at least within the law) argue against abortion rights, they generally don’t actually say that women have no right to an abortion, but that the right is one that the government can limit based on legitimate government interests. Sometimes the rational basis test will lead to overturning a law, such as when a quasi-suspect class becomes the target of discrimination for no apparent good reason other than distaste, but generally application of a rational basis test will be that the government regulation will stand. (Here is an excellent example of that.)
If a right has specific Constitutional protection – such as your freedom of speech or protection against search and seizure – then strict scrutiny generally applies. (There are also forms of "super-strict scrutiny" that I won’t discus here; see the Wikipedia page.) This form of review is sometimes called "strict in theory, fatal in fact," because it’s so rare for a regulation to survive strict scrutiny. To do so, a government restriction must be (1) justified by a compelling governmental interest, (2) "narrowly tailored" to achieve that goal or interest (neither overinclusive nor underinclusive), and (3) be the least restrictive means for achieving that interest. Obviously, it would be hard, though not necessarily impossible, for gun control regulations to survive strict scrutiny.
In between, there the family of intermediate scrutiny tests – applied among other areas to gender discrimination and legitimacy – which require that the government restriction is "necessary to achieve a compelling state interest." Oddly enough, the best example of this to keep in mind may be allowing gender-segregated public restrooms.
So, the question of the day was: which of these standards of review would be assigned to government attempts to restrict an individual RKBA? Once it became clear that Scalia would write the decision, this became if anything more interesting. Which would he choose?
As it turns out, the answer was: "none of the above." Actually, more than that: "none at all."
(3) Scalia’s cop-out
Scalia not only did not indicate a standard of review in Heller, but he lampooned Justice Breyer for the latter’s attempt to come up with one, based on the idea that the citizenry and the lower courts deserved some guidance. I had been predicting a new flavor of intermediate scrutiny, which is what Breyer was selling. Instead, what came out of the day was something like a mixture of rational basis, strict scrutiny, and puzzlement.
Here’s what the government can and can’t do, according to Scalia:
Can do:
- Register firearms
- Regulate firearms that have not been traditionally used for the purpose of self-defense at home
- Prohibit carrying of concealed weapons in public
- Prohibit possession of firearms by convicted felons
- Prohibit possession of firearms by the mentally ill
- Prohibit carrying of firearms in sensitive places such as schools and government buildings
- Impose conditions and qualifications on the commercial sale of arms
Why? I have no idea. "Tradition," seems to be part of the explanation, but that’s hardly a substitute for a standard of review even to the extent it applies. Scalia tells us that this is not an exhaustive list, suggesting much litigation for our future (at least if the right is found to be incorporated against the states.) He gives us no legal test to evaluate ahead of time what activities would pass muster (other than a quick conversation with Justice Kennedy.) This is, frankly, unprincipled legal cowardice.
What Scalia could have said, had he wished, is that strict scrutiny applies to the use of firearms for personal self-defense within the home and rational basis review or intermediate scrutiny would apply in public. But he chose not to do so.
Can’t do:
- Prevent, or maybe even impede, legally available guns from being used for self-defense at home.
What sort of scrutiny was used to reach this result? It seems "strict," but it’s not clear what it was. Obviously, this eliminated the portion of the D.C. law that said that one could not have handguns, or any arms, at home. It also knocked out the notion of trigger locks, though, and that is a more interesting story.
(4) Trigger locks?
Here’s what Scalia said about trigger locks (with citations omitted):
We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional. The District argues that we should interpret this element of the statute to contain an exception for self-defense. But we think that is precluded by the unequivocal text, and by the presence of certain other enumerated exceptions:
Except for law enforcement personnel . . . , each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia."
The nonexistence of a self-defense exception is also suggested by the D. C. Court of Appeals’ statement that the statute forbids residents to use firearms to stop intruders.
Perhaps it is true that there was no basis to read an exception for self-defense into the law requiring trigger locks, once it became clear that handguns would be allowed at home. But I doubt it – especially with the D.C. government beseeching the Court to do so. A principle called "Constitutional avoidance" – included in this nifty list of principles of statutory interpretation – says that
If a statute is susceptible to more than one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems. In the US, this canon has grown stronger in recent history. The traditional avoidance canon required the court to choose a different interpretation only when one interpretation was actually unconstitutional. The modern avoidance canon tells the court to choose a different interpretation when another interpretation merely raises constitutional doubts.
Scalia drove over this principle, then backed up and did it again. He wanted to reach the Constitutional issue rather than avoid it by reading a reasonable exception into the law and thus salvaging. This is, need I say, an extreme act of judicial activism.
Scalia’s defense in this, so far as I can tell, is that he believed that a trigger lock – generally designed to defeat children who might encounter and try to use a gun – would mean that the gun would no longer be useful for immediate self-defense in the home. I suppose that that might be true, to a slight extent – but the same could be said of a "safety," of which the trigger lock is in effect only a larger version.
One could imagine that a trigger lock could be constructed that would defeat children but would still leave the gun easily and quickly available for home self-defense. This might involve an alphanumerical combination or some other arcane procedure or even someday biometrics such as fingerprints or RFID keys or voice recognition and activation. (I don’t know enough about trigger locks to know if anything is currently out there, but it does not seem theoretically impossible.) What then?
Well, based on this opinion – and assuming that Scalia’s rationale of a gun’s "immediate availability" for home self-defense is in the decision for a reason, which we should assume – then to require such a trigger lock would appear to pass Constitutional muster. You could use the handgun, pretty much immediately, for home self-defense so long as you knew how to deactivate the lock. Scalia offers no standard to suggest that there’s any other basis to invalidate such a law requiring trigger locks that respects the core right of home self-defense; based on this decision, such a law would seem to fall into the "can do" category for that reason.
Now, this is pretty much of a quick and dirty first impression analysis; many people may come along and explain why I’m wrong. But at this point, I think that Justice Scalia may have today established a precedent that this Court, or future ones, will use to determine that states and the federal government can require guns to have trigger locks that can be easily and quickly removed by the owner, even as he thought he was getting rid of them. If that's what he did, then unless you're very opposed to all such gun control measures you just have to laugh.
Maybe he should have said something about standards of review.
NOTE ON THE POLL: For the sixth option down, that should be "favor gun control, partly blame Democrats" rather than being identical to the third option.