Disclaimer. What follows is general information on a law topic. Nothing in this diary constitutes legal advice and it is not to be acted on as legal advice. Criminal law and procedure is a law practice specialty. If you need advice, get it from a skilled professional.
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It is easy to understand why NRA chose these cases to try to expand Second Amendment rights.
BATFE would extend the
Who of
Heller’s right to self-defense to 18-20 year olds.
McCraw would broaden the
Where to public carry which in many states, does not extend to 18-20 year olds. Moreover, if the NRA won, public carry would be elevated to a constitutional right for every eligible gun owner, 18 and older, everywhere.
However, the issues are not quite that straightforward. Eighteen year olds can buy rifles and shotguns from Federally licensed dealers ("FFLs"), they can buy handguns in private deals, their parents can give them guns and 21 year old friends can buy guns for them. As for carrying a gun in public (openly, concealed or both), the law in every state in the nation allows it with variations … but in about two-thirds of the states, not by persons under the age of 21.
Nevertheless, the NRA views Heller and McDonald in absolute terms. It sees them as constitutional commandments that should void restrictive Federal and state firearms laws. At the outset, then, we need to know what these cases decided.
Heller and McDonald : The Beginning of … What, Exactly?
These are seminal gun rights cases - in the sense of being major turning points - since the Bill of Rights became effective in 1791.
D.C. v. Heller (2008) held that the Second Amendment contained a constitutional right to have an operable handgun for self-defense in one's home. It reversed the DC council's legislation, then the strictest ban in the nation. McDonald v. City of Chicago (2010) was a case from Chicago and its adjacent suburb of Oak Park, with the next strictest gun bans. The Heller decision's right of self-defense applied only to DC and Federal jurisdictions. McDonald applied it to states and cities.
In Heller (2008), Justice Scalia, writing for a five-justice majority, declared:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. ... Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Footnote 26: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.
[citations omitted; italics added for emphasis]
In
McDonald, Justice Alito repeated Scalia’s language and took pains to reiterate that:
Despite municipal respondents’ doomsday proclamations, incorporation [through the 14th Amendment] does not imperil every law regulating firearms.
Sidebar. As occurs in a few Supreme Court cases, McDonald was a majority decision (5-4) but J. Alito's lead opinion was for only a plurality, four of the nine justices. This was because J. Thomas disagreed (and J. Scalia had reservations) on which theory the Court should employ to "incorporate" its Heller self-defense holding to the states through the 14th Amendment. That is a mini-law course for another diary. I've bitten off enough to chew already.
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SCOTUS is now on break until February 21. If it accepts either or both of the NRA cases - with the time it takes the parties to prepare briefs and the Court to hear oral arguments, decide the case(s) and write opinions - it is likely more than six years will have elapsed since
Heller.
It is clear to me that the Court has been giving legislatures, state courts and lower Federal courts time to work out for themselves Heller’s implications and consequences. SCOTUS explicitly chose not to pronounce upon these when it decided the Heller case. It is clear the NRA thinks the Court has taken too long.
NRA v.BATFE : Sec. 922 (b)(1)
In the
Gun Control Act of 1968 (Sec. 922(b)(1)), Congress prohibited commercial sales of handguns by FFLs to those under the age of 21:
(b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver —
(1) any firearm or ammunition ... if the firearm, or ammunition is other than a shotgun or rifle, or ammunition for a shotgun or rifle, to any individual who the licensee knows or has reasonable cause to believe is less than twenty-one years of age; ...
The section was narrowly crafted, the result of political compromises. The government argues practicalities - Congress regarded commercial handgun sales as the core problem it could resolve within the Federal system of gun dealing. The NRA, on the other hand, doesn’t take political compromise for an answer. With so many other ways for minors to get guns, the NRA labeled the FFL handgun prohibition "well-nigh irrational."
The Fifth Circuit Court of Appeals reviewed the history of keeping 18-20 year olds from buying guns. It held that policy "... is consistent with a long-standing tradition of age- and safety-based restrictions on the ability to access arms" from "founding-era thinking," through 19th century legislators and courts and up to current times. A 1999 report by the U.S. Treasury and DOJ found that in 1997, 18, 19 and 20 year olds ranked first, second, and third in the number of gun homicides committed.
Quoting Heller, the Fifth Circuit observed that the core of the Second Amendment protects “law-abiding, responsible” citizens. "Congress found that persons under 21 tend to be relatively irresponsible and can be prone to violent crime, especially when they have easy access to handguns."
Sidebar. Remember the issue Heller did not settle and the justices in McDonald justices split over - the "level of scrutiny" courts should employ to determine whether a state or Federal law is constitutional?
How high the court sets that bar depends on how fundamental the constitutional right is and what governmental interest is at stake.
Simply stated, from an easy standard to the most rigorous, the choices are:
(1) Rational Basis: Is there a rational basis to achieve a proper government purpose?, or
(2) Heightened/Intermediate Scrutiny: Is there a substantial relationship to the governmental purpose or objective? or
(3) Strict scrutiny: Is the law narrowly tailored to achieve a compelling governmental purpose?
The standard a court selects will often determine the outcome of a case.
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The Fifth Circuit pointed to footnote 26 of Scalia's opinion in
Heller, that longstanding prohibitions on firearm possession by felons and the mentally ill, for example, are
presumptively valid. To the Fifth Circuit, that meant
Heller had endorsed "regulation of gun possession by classes of persons" and therefore, categories such as age do not involve a "fundamental" Second Amendment right. Therefore, strict scrutiny (the toughest standard) is not appropriate and an intermediate level of scrutiny is. The Fifth Circuit concluded that limiting access to handguns by 18-20 year olds did have a substantial relationship to an appropriate governmental objective.
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Another Sidebar. This level-of-scrutiny analysis is a semantic exercise. It grew over decades of cases in an attempt to impose a framework of logic on what is inherently subjective judgment. One scholar (Ted White on the UVA law faculty) has called this "a complex web" "intricate to the point of unintelligibility." Practitioners and law students, however, are stuck with this rubric.
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The NRA's Petition for
Certiorari argued that Second Amendment rights
are fundamental, that the Fifth Circuit Court applied a very weak test of scrutiny and that it and similar decisions in two other Federal circuits are not "remotely consistent with this Court’s decisions in
Heller and
McDonald."
NRA v. McCraw: Gun Carry in Public
The NRA carried on this theme in its appeal in
McCraw. (Stephen C. McCraw is the Director of the Texas Department of Public Safety.) It argued:
This massive judicial resistance to implementing this Court’s Second Amendment decisions is particularly acute in challenges to laws restricting the right to carry a firearm in public. A number of courts have held that the right to keep and bear arms does not extend beyond the home, while others have subjected restrictions on that right to a form of intermediate scrutiny that is heightened in theory but toothless in fact. The practical result under both approaches is the same: the fundamental right to defend oneself with a firearm is effectively limited to the home, and this Court’s decisions in Heller and McDonald are effectively limited to their facts.
The NRA reads
Heller broadly. To "keep" arms and to "bear arms" are different concepts, it reasoned. Does
Heller mean only that you can "bear" arms from where you "keep" them in one room in your house to another room? It argued:
Heller explained that “[a]t the time of the founding, as now, to ‘bear’ meant to ‘carry,’ ” and “[w]hen used with ‘arms,’ . . . the term has a meaning that refers to carrying for a particular purpose – confrontation.”
The NRA acknowledged that Texas law does
not prohibit public carry, although it puts conditions on carry permits dealing with handgun training and safety. Nevertheless, it devoted several pages to critiques of decisions in other circuits, underscoring its view that bearing arms is fundamental and any limitation calls for strict scrutiny. In its conclusion, the NRA deftly sidestepped other pending cases and urged that SCOTUS move its
McCraw case ahead of others:
Several petitions for review are currently pending before this Court that involve challenges to state laws regulating the carrying of handguns in public. The present case has the comparative advantage of being free of any possible distractions or complications relating to a public official’s exercise of discretion in denying a handgun carry permit. Under the Texas laws challenged here, all law-abiding civilian adults aged 18 to 20 are categorically stripped of their Second Amendment right to bear handguns in public for self-defense. This case thus provides a pristine vehicle for addressing an important question that has divided the State and Federal appellate courts.
Critics will note that deciding for the NRA in "this pristine vehicle" would go
way beyond the issue of 18-20 year olds and establish a fundamental Second Amendment right to carry in public, a constitutional mandate that would do away with discretionary "may issue" permitting in eight states that have more than 25% of the US population. Why? The Supreme Court explicitly limited
Heller and
McDonald to self-defense in the gun owner's home. If - as the NRA contends, there should be an absolute Second Amendment right for 18-20 year olds to carry in public (as contrasted with a right based on the statutory or case law of any given jurisdiction, which could be changed) - that necessarily means there is a constitutional right for every eligible gun owner to carry in public.
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Observations
1. According to
a tally by the Law Center to Prevent Gun Violence, SCOTUS has passed up the opportunity to review
sixty Second Amendment cases since
Heller. That is neither an accident nor neglect, the Center concludes:
By repeatedly declining to review lower court decisions upholding federal, state, and local gun laws, the Supreme Court has maintained important limitations on the Second Amendment and has reconfirmed that the Amendment is not an obstacle to smart gun laws that keep our communities safe from gun violence.
2.
BATFE and
McCraw are in the Petition stage. (Briefs on the merits won't be filed unless the Court grants review.) Review by the Supreme Court is by no means a slam dunk. However, Lyle Denniston, a reporter who writes extensively for SCOTUSblog, told me:
I think that these cases may have the best chance of a now-lengthening series of attempts to get the Court to spell out further what rights were conferred by the Heller decision. I think there is a fair chance of a grant [of certiorari, that is, a call to accept the case for appeal] in one or both of these.
3. The invective NRA is hurling at all the lower Federal courts might just as well be aimed directly at the Supreme Court. "May it please the Court" is the deferential opening sentence every lawyer gives before every court in every case. Compare that to the NRA's vehement criticisms of the courts in these two cases. There is no deference here; the Court is being hollered at.
4. A third case is pending, Lane v. Holder. The question presented is not the Second Amendment directly (although case papers were filed by Alan Gura, the attorney who successfully argued Heller and McDonald). It is whether out-of-state gun buyers have standing to challenge state and Federal laws that require interstate gun purchases to be consummated between dealers in the two states, not directly by the purchaser. The plaintiff, who lives in DC, bought two handguns in Virginia but before the transfer could be completed, the only FFL in DC dealer lost his lease. Gura is asking the court to merge his case with NRA v. BAFTE.
5. Resolving splits of authority among the Federal Circuit Courts of Appeal (the level between Federal trial courts and SCOTUS) is strong reason for SCOTUS to take a case for review. On the public carry question, Federal circuits are split. Three Circuits have now found no constitutional right to public carry. One has, the respected Seventh Circuit in Chicago. In Moore v. Madigan, Court of Appeals Judge Richard Posner emphasized the "bear arms" and confrontation argument points repeated by the NRA, in holding that the Second Amendment contained a right to carry arms for self defense in places outside the home. Judge Posner's opinion for the 2-1 majority, gave the Illinois legislature 180 days to craft appropriate legislation. (There was a strong dissent.)
A gun is a potential danger to more people if carried in public than just kept in the home. But the other side of this coin is that knowing that many law-abiding citizens are walking the streets armed may make criminals timid. Given that in Chicago, at least, most murders occur outside the home ... the net effect on crime rates in general and murder rates in particular of allowing the carriage of guns in public is uncertain both as a matter of theory and empirically.
(Two thoughts about that. I live in Chicago. Our criminals are not known to be "timid". And, the "net effect" of public carry being "uncertain" sounds like a strong reason for judicial deference to existing legislation, not judicial activism.)
Moore was not appealed to SCOTUS. (Perhaps not incidentally, the Madigan sued in the Moore case is Lisa, Illinois' Attorney General. Her father, Mike, has been Speaker of the Illinois House of Representatives for almost 30 years.) The Illinois legislature crafted a long permissive "must issue" carry statute. The changes this 168-page bill made in the historically restrictive gun laws of Illinois and Chicago were so pervasive that it is being implemented only now, in January 2014.
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Note: I made minor edits after publication to correct grammar.
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