(Coming soon to the Amendment II Democrats website)
DC v. Heller. McDonald v. City of Chicago. And now Gill v. OPM?
Maybe, especially with Chicago’s City Council, under pressure from Mayor Richard Daley, voting 45-0 to impose draconian new gun laws for the Windy City in the aftermath of the Supreme Court’s McDonald ruling. These new laws require both a city permit and an Illinois FOID card to purchase firearms, limit civilian purchases to one gun a month, allows a civilian to own only one handgun, forbids gun sales and firing ranges within Chicago city limits, and leaves a civilian vulnerable to arrest if spotted with a firearm either on the front porch or in the garage of his or her own home. There is already at least one lawsuit to block Chicago’s new laws.
But in a US District Court ruling that declares the Defense of Marriage Act (DOMA) unconstitutional, has Judge Joseph L. Tauro handed more ammunition to defenders of Second Amendment rights?
Here are some of the arguments that could be used to shut down both DOMA and Mayor Daley’s war against the Second Amendment. Bear in mind that your humble Webmaster is neither a lawyer or a judge, but he does consider these legal concepts worth careful review and scrutiny - and they are based on a broader reading of the Bill of Rights.
The Fifth Amendment to the United States Constitution reads: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (Emphasis mine)
Judge Tauro points out in his ruling that, unlike the Fourteenth Amendment, the Fifth Amendment does not contain an "equal protection" clause, but the Fifth Amendment’s clause on "due process" does include an "equal protection" component, the very instrument that was used to outlaw racial segregation in public schools within the District of Columbia (Bolling v. Sharpe, 347 U. S. 497, 499 (1954)). The plaintiffs in Gill v. OPM asserted that DOMA’s denial of certain Federal benefits to same-sex couples violated the equal protection principles embodied in the Fifth Amendment’s due process clause, and Tauro sided with the plaintiffs in his summary judgment.
The reason that equal protection jurisprudence is so important is that it can be used to address classifications by government agencies that "affect some groups of citizens differently than others." (Engquist v. Or. Dep’t of Agric., 553 U.S. 591, _, 128 S. Ct. 2146, 2152 (2008); quoting McGowan v. Maryland, 366 U.S. 420, 425 (1961)) This distinction seems to cover not just same-sex couples, but also gun owners who are clearly exercising what the US Supreme Court has declared a "fundamental" right in the McDonald ruling, and it is because of the commitment of equal protection jurisprudence "to the law’s neutrality where the rights of persons are at stake" that any laws that arbitrarily or irrationally create discrete classes of American citizens, according to Tauro, cannot endure in the light of Constitutional scrutiny. (Romer v. Evans, 517 U.S. 620, 623 (1996); quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J. dissenting))
Because the drive to ensure equal protection often runs headfirst into the reality that many laws classify people for one reason or another, Tauro noted that American courts apply the concept of "strict scrutiny" only to those laws that restrict a fundamental right (i.e. the right to keep and bear arms) or target a specific group of people (i.e. same-sex couples), as indicated in Romer. If a law does neither, but exhibits a rational relationship to a legitimate government interest, that law can be upheld if it survives the Constitutional standard of review known as the "rational basis inquiry." This is not a license for judicial activism [Heller v. Doe, 509 U.S. 312, 319-20 (1993)], and courts may seek out a government interest strong enough to justify the contested law under rational basis inquiry [Shaw v. Oregon Public Employees’ Retirement Bd., 887 F.2d 947, 948-49 (9th Cir. 1989)], but if the law in question is not "narrow enough in scope and grounded in a sufficient factual context for [the court] to ascertain some relation between the classification and the purpose" that it serves [Romer v. Evans, 517 U.S. 620, 633 (1996)], or if said law relies "on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational" [Heller v. Doe, 509 U.S. 312, 321 (1993)], that law cannot pass Constitutional muster.
Thanks in part to the ruling handed down by Judge Tauro against DOMA, Mayor Daley and Chicago’s aldermen are going to have to scramble hard to justify a new regimen of harsh gun regulations that have not been demonstrated to reduce violent crime rates in the city or make communities any safer. And the same may apply to California’s ban on semi-automatic firearms as well as New Jersey’s "one gun a month" law. And that’s just for starters.