Sunday, June 27, 2010

McDonald, the 2nd, and the States

The Supremes handed down their decision in McDonald v. Chicago today. This case follows D.C. v. Heller, in which the Supreme Court held a city ordinance banning the possession of firearms violated the right to keep and bear arms expressed in the Second Amendment to the Constitution. The Heller decision was limited, though, in that it only dealt with a firearms ban that was in place under Federal government authority, since it dealt with the District of Columbia.

Once the Heller decision was filed, a number of challenges to various ordinances limiting or banning firearms were made. The Second Circuit Court of Appeals, in a decision signed by now-Justice Sotomayor, held that the Second Amendment did not apply to the states. The Ninth Circuit, in a decision which has been referred for en banc review (which is on hold pending the word from the Supremes in McDonald), held that the Second Amendment did apply to the states, as it dealt with a fundamental right (I talked about it here).

Right now, the decision only appears to be available as a 214 page pdf. So, most importantly, the Supreme Court has ruled that the Second Amendment does prohibit state and local governments from restricting the right to keep and bear arms (too much). The decision is 5-4, with the Opinion of the Court written by Justice Alito and Justice Thomas concurring in part and concurring in the judgment. Justice Stevens dissented (no surprise) and Justice Breyer dissented, joined by Justices Ginsburg and Sotomayor (not really a surprise, either). Lots of meat there, lots to read. I'm sure scholars of Con law are working on analyses right now. In the meantime, the Sullivan Act's progeny are going to cost lots of cities and towns lots of money.

For further reading, but less than the 214 pages of the McDonald decision, Wikipedia has a pretty comprehensive article on the Second Amendment and Court decisions which I'm sure someone is updating right now.

Well, having read the opinion of the Court, the concurrences, and one dissent, I'll add a couple of things.

First, there is a fair bit in here for attorneys who will argue as to the continuing validity of various restrictions on firearm ownership. On page 26 of the Slip Opinion, the Court cites to language from Heller describing handguns as being protected as they are the weapon of choice for self defense. On page 39, the Court describes the "central holding" of the Heller decision as "...the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home." I predict this language will be cited in response to any argument that restrictions on automatic weapons, any long guns (including short barreled shotguns), nunchucks, switchblades, or suppressed firearms is unconstitutional. As the Supreme Court has held that the right preceding and underlying the Second Amendment is that of self-defense, only "undue" restrictions on weapons that are both "preferred" (which, likely, will mean in common use today) and "suitable" (which, likely, will mean whatever a given judge decides) for self defense will be overturned. Want a Remington 1100 chopped off right in front of the gas port and loaded with buckshot to protect the homestead? Don't hold your breath. This conclusion is reinforced by the plurality's admonition (p. 45) that it is important to keep in mind that Heller held a right to keep and bear arms is not "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose".

Second, and very good news, is that the Opinion of the Court makes it pretty clear that Justice Breyer's repeated calls for an "interest balancing test" to decide whether given statutes infringe the right to keep and bear arms is, for now, not going to become law. The plurality twice notes, at page 45 of the Slip Op. and again on page 50, that it explicitly rejects such a test and that the majority in Heller did so as well. Combined, that's precedent. Also, the majority characterizes the Second Amendment right as "fundamental". The Seventh Circuit had held in this case that Chicago's handgun ban had a rational basis to a legitimate state interest. The "rational basis" test is less demanding than an "interest balancing" test rejected here. I believe this will only leave lower courts with "strict scrutiny" at the test for evaluating firearms restrictions. So, those restrictions will have to be narrowly tailored to accomplish a compelling governmental interest and must, in addition, be the least restrictive means of accomplishing that interest. While this is good news, you have to keep in mind that the limitations inherent in the right being protected as described just above. Great news for the folks in DC still trying to get handguns in the face of persistent foot dragging by the city government, though.

Justice Scalia's concurrance is a fairly vituperative calling out of Justice Stevens' dissent and political philosophy, I'd speculate that the tone would be a little different if Stevens was staying on the bench. Interesting read, depending upon your definition of interesting.

P. 67 of the Slip Op.- Justice Thomas' dissent- A great (from an originalist perspective) treatise on the doctrines of selective incorporation, the Privileges and Immunities Clause of the 14th Amendment, and the 14th Amendment in general. Most legal textbooks are less informative. Personally, I think his argument that the Second Amendment applies against the states due to the Privileges and Immunities clause is logically and legally unassailable, despite the hundred and thirty years of (bad) decisions stemming from the Slaughterhouse Cases (which are a fine example of authority justifying its conclusion by tautology) and Cruikshank.


Shawn K. Wayment, DVM said...

Thanks for posting this!

mdmnm said...


Matt Mullenix said...

Man I hope you get paid for this stuff. Truly excellent, although I must warn you my admiration of it comes from near total ignorance of this or any law.

mdmnm said...

Thanks Matt!

Just letting a little law geekery show- glad it made some sense to those of you all who don't follow this sort of thing as a matter of course.