Tuesday, June 9, 2015

Does the Supreme Court's "Doctrinal Lead" Extend to Loaded Guns on Coffee Tables?

It's been four years since the United States Supreme Court decided that the 2nd Amendment's "right of the people to keep and bear arms" is implicit in an ordered sense of liberty and is binding on state legislatures. The court held that the 2nd Amendment constrains state legislatures despite the fact that--by its terms--the 2nd Amendment is only binding on Congress (and not binding on state legislatures). McDonald v. Chicago. 

Four years out, it appears that McDonald may not have sounded the death knell for state and local gun control legislation that the National Rifle Association may have hoped for.  Indeed, over the past four years lower courts have mostly continued to uphold restrictive gun control legislation.

The latest case in point, Jackson v. City and County of San Francisco, is pending in San Francisco. San Francisco has had a restrictive gun control ordinance since 1994. You can own a gun in this city (if you are over 18), but you cannot use that gun except in self-defense, for sport shooting, or if you are specifically authorized by law. Firearms and Weapons Violence Prevention Ordinance, Sections 4500--4512. Moreover, you can't leave your loaded gun laying about the house: it must be kept in a lock-box, or secured with an approved trigger-lock at all times except when physically carried by an adult.

Six homeowners and two pro-gun associations are challenging the San Francisco ordinance and they sought an injunction on the grounds that the requirement for a lock-box and trigger lock made a gun kept in the home unavailable for self-defense. Notably, in District of Columbia v. Heller (2008) the Supreme Court invalidated the District of Columbia's gun ordinance for requiring a trigger lock on all guns kept at home.

On the strength of Heller, the plaintiffs challenging the San Francisco ordinance (Jackson) sought a preliminary injunction--i.e. they asked that the City should not be able to enforce the statute pending a full review of the merits. However both the trial court and the 9th Circuit Court of Appeals denied the application for a preliminary injunction. Petitioners appealed to the U.S. Supreme Court.

At the Supreme Court four justices must agree to hear a case, or it won't be heard.  On June 8, 2015 seven justices declined certiorari (declined to review the denial of the preliminary injunction). Justice Thomas, joined by Justice Scalia, thought the case was so clear cut in light of Heller that an injunction should obviously have been granted. Justice Thomas wrote a strongly worded dissent from the denial of certiorari.

Here is how Justice Thomas explained the rationale of the court of Appeals:

The Court of Appeals readily acknowledged that the law “burdens the core of the Second Amendment right” because “[h]aving to retrieve handguns from locked containers or removing trigger locks makes it more difficult ‘for citizens to use them for the core lawful purpose of self-defense’ in the home.” 746 F. 3d 953, 964 (2014) (quoting Heller, supra, at 630). But it reasoned that this was not a “severe burden” justifying the application of strict scrutiny because “a modern gun safe may be opened quickly.” 746 F. 3d, at 964. Applying intermediate scrutiny, the court evaluated San Francisco’s proffered “evidence that guns kept in the home are most often used in suicides and against family and friends rather than in self-defense and that children are particularly at risk of injury and death.” Id., at 965. The court concluded that the law served “a significant government interest by reducing the number of gun-related injuries and deaths from having an unlocked handgun in the home” and was “substantially related” to that interest. Id., at 966.
At Volokh Conspiracy, a group blog of conservative/libertarian law professors, Jonathan Adler notes that the District Court and the 9th Circuit Court of Appeals in Jackson are not alone in continuing to defer to local legislatures regarding gun control laws.

Here's Adler:
This is not the first time lower courts have been slow to follow the Supreme Court’s doctrinal lead. In the five years after the Court invalidated the Gun-Free School Zones Act for exceeding the scope of the federal Commerce Power in United States v. Lopez, only one federal appellate court found another federal law to be unconstitutional. The U.S. Court of Appeals for the Fourth Circuit invalidated the civil damages provision of the Violence Against Women Act, in a decision the Supreme Court affirmed, and that was it. A few successful Commerce Clause challenges followed Morrison, but federal appellate courts resumed their uniformly deferential ways after the Supreme Court rejected a Commerce Clause challenge to the federal prohibition on marijuana possession in Gonzales v. Raich
Given this pattern, it’s unsurprising that lower courts have done little with Heller or McDonald. If there is to be meaningful review of Second Amendment claims in lower courts, they need a signal from the Supreme Court that Heller and McDonald were for real, and were not merely symbolic nods to the Second Amendment. Until then, the Second Amendment (like parts of the Fifth) will remain one of the poor relations within the Bill of Rights.

But What is the "Doctrinal Lead" of McDonald v. Chicago?

We shouldn't read too much into this denial of certiorari in Jackson.  Presumably the case will now go back to the District Court for a trial on the merits of the constitutionality of the statute. This was not the last word on this case.  The Supreme Court may get another chance at this, depending on how the case plays out in the lower courts. By their dissent from the denial of certiorari, Justices Thomas and Scalia, therefore, wanted to send that signal that Adler refers to: follow our doctrinal lead! Granting certiorari in this case would have sent a strong and clear signal indeed.

But is the "doctrinal lead" of Heller and McDonald as clear as Thomas and Scalia think?  First, the court in McDonald v. Chicago directed the lower courts to examine local gun control legislation on a case by case basis and to balance the public interest against the restrictions being placed on the "right to bear arms." Second, it is worth noting that the McDonald "right to keep and bear arms" is not based on the words of the constitution, rather it is based on the much vaguer concept of an "ordered sense of liberty."

In Chicago v. McDonald Justices Alito, Scalia, Thomas, Kennedy, and Chief Justice Roberts held that the 2nd Amendment is applicable to the states, but they declined to hold that all of the provisions of the Bill of Rights is incorporated and binding on the states through the privileges and immunities clause of the 14th Amendment ("No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States") [See my prior explanation here].

The "privileges and immunities" route would have been revolutionary, but soundly rooted in the text. Thomas and Scalia are guided by a judicial philosophy that places great stock in the actual words of the constitution, and the original intention behind those words.  Although revolutionary, making the 2nd Amendment binding on the states through the privileges and immunities clause of the 14th Am. would have been a principled decision based on the text and the plain meaning of the words in that text (even if crazy because it would have overturned a century of constitutional law).  Wisely, I think, they did not take that revolutionary step.

But the implication of not having taken that revolutionary step is that, being logical and consistent, they cannot now point to the words of the 2nd Amendment and say "this is the basis for our ruling." They must rely on a vague concept that (1) there is a "right to bear arms" and (2) it is implicit in an "ordered sense of liberty." This distinguishes Heller  from McDonald.  Heller was about the District of Columbia's statute, which is administered by Congress; i.e. the words of the 2nd Amendment apply directly to any review of the D.C. gun control statute.  However, the San Francisco statute must be reviewed in light of the a broad right to bear arms that is implicit in an ordered sense of liberty. Crucially this does not include words like "may not infringe" in categorical terms--by its very nature a right to bear arms for self-defense rooted in a concept of ordered liberty must take into account the right of self-defense in a much broader, more holistic manner. This allows the court to consider significant government interests like reducing the number of gun-related injuries and deaths from having an unlocked handgun in the home, and to balance this against a right to bear arms that is "implicit in an ordered sense of liberty."

Judges looking at the original intent of the words of the 2nd Amendment in Heller could well conclude that the language of the 2nd Amendment binding on Congress [the right of the people to keep and bear arms "shall not be infringed"] is different than a more vague and general right to bear arms that is "inherent in a well ordered sense of liberty" and binding on the states.

In reviewing the merits of the the San Francisco ordinance, the court may well conclude that a well ordered sense of liberty requires a right of self defense--and California has a liberal concept of self-defense--but that this does not require a right to leave a loaded handgun on the coffee-table where young kids may be running about.

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