The Second Amendment
Page 16
The Princeton speech came four and a half years after the justice proudly announced Heller from the bench. It was also three days before a deranged young man walked into Sandy Hook Elementary School in Newtown, Connecticut, and murdered twenty children and six adults. The nation would begin to discuss gun control again—this time in the context of a newly articulated constitutional doctrine that might limit next steps.
PART
THREE
EIGHT
From Heller to Sandy Hook
In the year before the December 2012 massacre at Sandy Hook Elementary School, the bucolic countryside around Newtown rang with automatic weapons fire and odd explosions. Police were inundated with complaints of noisy shooting late at night and early in the morning. The din did not come from weapons for hunting deer (plentiful in the woods), or handguns stashed in a bedside night table. Residents had begun spraying targets with semiautomatic weapons. According to the police chief, some had taken to shooting up propane tanks. Others enhanced their targets with Tannerite, a mixture of ammonium nitrate and aluminum powder, which detonates with a roar when hit. At the request of police, the town council prepared an ordinance to ensure there would not be noisy shooting late at night, early in the morning, or too close to occupied buildings.
Then one hundred hunters and gun activists crowded monthly meetings and decried the zoning proposal as a violation of their Second Amendment rights. “This is a freedom that should never be taken away,” one woman proclaimed. The National Shooting Sports Foundation—the firearms industry lobbying group—was headquartered in the town, and argued against the ordinance. The town council retreated. It never changed the rules. Mary Ann Jacob, the chair of the council’s “ordinance committee,” soon became better known: she was the heroic librarian’s aide who barricaded the door to shield children at the school during the mass shooting.
A few days after the bloodbath, the National Shooting Sports Foundation website seemed frozen in place. A message from the group’s president professed to being “deeply shaken and saddened by the horrible events that took place in Newtown, Connecticut, our headquarters and home.” Surrounding the statement were promotions for the industry’s SHOT trade show in Las Vegas, and links to the group’s “Bullet Points” and “Pull the Trigger” blogs. Second Amendment fundamentalism, amped up by industry lobbying, turned even a zoning tussle into a fight over first principles: welcome to post-Heller America.
The Newtown massacre that punctuated 2012 was hardly the first instance of gun violence in the new millennium. Each year, thirty thousand Americans die from guns. Fifty thousand more are wounded. Over the previous two years, mass murders in Tucson and at a midnight movie showing in Aurora, Colorado, each briefly horrified. These deaths were only the most visible. Inner-city neighborhoods routinely are plagued with gangs who strafe each other and passersby with gunfire.
But the shooting at Sandy Hook cracked wide the gun issue again. Patterns have repeated over the past century: first, a wrenching, publicized atrocity. In the past, it was political violence that galvanized, from the assault on Mayor Gaynor to the murders of Robert Kennedy and Martin Luther King, to the attempt on the life of President Reagan. A spasm of remorseful legislating would follow, some more symbol than substance, all politically painful or even impossible. It has been half a century since a president was slain. The background noise of gun violence and crime has lost its capacity to spur action. But mass killings still shock. Newtown, Aurora, and Tucson were the first massacres in our current media and political age, and also the first in the era of constitutionalized litigation on guns.
Gun law, now, had become a constitutional concern, a new legal realm. New gun laws will have to comply with the new interpretation of the amendment. But rights, even core constitutional rights, face limitations in courts and in practice. In the years after Heller, Americans began to grapple with what that right really might mean.
JUDGING GUNS AFTER HELLER
In June 2008, a mere two hours after Justice Scalia read out Heller in the Supreme Court, gun supporters filed the first lawsuit to strike down Chicago’s municipal law. By the next day, the NRA and its allies filed five suits around the country. Within months, dozens more cases were working their way through the courts. Confusing matters more, Heller used a novel approach, asking courts to consider tradition, long-ago history, and colonial practice in assessing thousands of state and local laws here and now. Supreme Court decisions often give lower courts precise guidance on how to interpret rights. Heller offered few standards at all.
So what did the monumental ruling in Heller actually mean for the law?
All knew the anticipated next step for gun rights advocates would be to seek a ruling that the Second Amendment’s individual right applied to the states. Most gun law is found in state statutes. Washington, D.C., is federal territory, ultimately under Congress’s jurisdiction; hence Heller. In Cruikshank, and then in Presser, the Supreme Court had been quite precise in holding that the Second Amendment did not apply to state governments. Of course, originally none of the Bill of Rights did, either. Courts began to enforce those rights throughout the twentieth century, by “incorporating” them through the Fourteenth Amendment, parts of which did apply to states. As of 1920, the guarantee of free speech and freedom of the press, the requirement for a search warrant, the requirement for just compensation when government seizes property, was deemed not to apply to states. By 2008, all did. Only a few provisions had not yet been “incorporated.” The Second Amendment’s individual right, newly proclaimed, was one of them.
So in 2010 in McDonald v. Chicago, the Supreme Court addressed the Second Amendment again—this time as it applied to states. Sequels rarely are as exciting as the first blockbuster. This one offered little surprise. Chicago had the country’s toughest handgun law, now that Washington, D.C.’s had been negated. Once again, a sympathetic plaintiff brought suit. This time an elderly Chicago man, Otis McDonald, lived in a high-crime neighborhood and wanted to protect himself with a handgun at home. Once again, a flurry of friend of the court briefs (fewer, less impassioned). The vote among the justices, once again, was 5 to 4: the Second Amendment did in fact apply to the states. Justice Samuel Alito wrote for the majority. Alito’s opinion was a judicial victory lap. It made clear there was not only a right to a workable gun in the home, but that it was “fundamental.” Originalism felt less strained the second time around. After all, there was considerably more historical evidence that at least some framers of the Fourteenth Amendment thought it covered individuals protecting themselves with guns, as opposed to militias marching around New England village greens. The dissenters made their arguments, this time less indignantly. Justice Stevens once again wrote a demurral. He asserted that the framers of the Fourteenth Amendment, the Radical Republicans, cared first and foremost about equal treatment of white and black Southerners, rather than an amendment that would somehow block states from enforcing criminal justice policy in a neutral way. (That was a slightly queasy argument, given the way liberals rely on the Fourteenth Amendment to expand an array of rights in the Constitution.) Justice Breyer, in turn, catalogued the array of scholarly articles by historians pummeling Heller’s errors. In truth, all knew that if the Second Amendment now constrained Congress, which passed few gun laws, it would be markedly odd if it did not apply to states as well.
That night Wayne LaPierre and Paul Helmke, the director of the Brady Campaign to Prevent Gun Violence sparred on public television. The NRA chief pronounced McDonald “a landmark decision.” Helmke noted ruefully, “This is good for lawyers.”
Yes, it was. Now that the Supreme Court had spoken, hundreds of judges, thousands of litigants, and communities and jurisdictions around the country would have to sort out what it meant. The justices would not weigh in again soon. But the Court’s rulings in Heller and McDonald just began the challenge for lower courts. The searching, if tendentious, examination of history is not easy for judges and overworked advocates who mig
ht be intrepid legal aid lawyers or harried assistant district attorneys.
All told, dozens of suits challenging the vast array of gun laws were brought. Surprisingly, courts rebuffed nearly all. In the first two years after Heller, federal courts considered the constitutionality of gun laws in two hundred cases. Gun laws were upheld in all but two. According to one tally, judges upheld laws requiring “good cause” for issuance of a permit to carry a concealed gun, those requiring guns to be kept in a locked container when not in the owner’s possession, requiring gun owners to be twenty-one. Courts upheld laws that prevented people from buying a gun if they had a past felony conviction, or a misdemeanor domestic violence conviction, or had been involuntarily committed to a mental institution. Criminal defendants now routinely claim violation of their Second Amendment rights. These claims have been rejected, too.
Heller had proclaimed a right, one individuals can sue to uphold—but agreed that there were limits to that right. Our Constitution is replete with such rights. They are important but subject to boundaries. That begins but does not end the analysis. Judges and lawyers, assessing a constitutional right, often sought other analogies, other lines of cases that can suggest the best way to proceed. The libertarian UCLA professor Eugene Volokh showed that there were multiple justifications for gun regulations that nonetheless recognized an individual right. Some laws affected who could own a gun, where a gun could be owned, what kinds were especially dangerous, and so on. He urged courts not to simply borrow the standards of review used for other constitutional rights. Another professor, Mark Tushnet, made a bolder prediction. He suggested it likely that judges would in fact find a way to avoid knocking down gun laws like bowling pins. They would find and use existing models for how to do this.
Repeatedly courts turned to the First Amendment. The right to speak is fundamental, but is limited or regulated under myriad circumstances. You are not entitled to commit libel, or to turn up a sound truck to eleven at three in the morning. As Justice Holmes wrote, you cannot falsely shout fire in a crowded theater. The First Amendment does not enable you to stage a parade without a permit: government cannot ban your political speech, but can set rules on “time, place and manner.” Courts treat campaign contributions to lawmakers as a form of speech, but have upheld limits on the size of the gift in an effort to ward off corruption.
Most courts have made a similar assessment. First, they ask whether the law affects a core Second Amendment right. What is that right? Heller identified the right of self-defense in “hearth and home,” with a “commonly used” weapon. Then judges scrutinize the law, to see whether it goes too far to impinge on that right. Scalia wrote that D.C.’s gun law would fail under “any standard of scrutiny.” Heller explicitly rejected the loosest standard. That would ask only whether the legislature had a “rational basis” for enacting the law, at least when it comes to handguns in the home. When courts apply this test, legislatures only must show that a given law plausibly could make a difference toward its stated goal. At the same time, judges have not been willing to apply “strict scrutiny,” which asks whether a law is narrowly tailored to serve a compelling government interest. When judges apply this exacting standard on other issues, usually this means they will strike down a law.
Instead, most judges have applied “intermediate scrutiny.” As one federal court of appeals wrote, in one of the first rulings just a year after Heller, intermediate scrutiny “need not establish a close fit between the statute’s means and its end, but it must at least establish a reasonable fit.” Consider the case of a Meadville, Pennsylvania, man convicted of obliterating the serial numbers imprinted on handguns, and selling them out of his home. His conviction, he said, violated his Second Amendment right. Because it involved a handgun in a home, the court of appeals ruled, this did implicate a Second Amendment right. But the judges found that government had a “substantial or important interest” in making sure police could trace guns. Myriad cases used similar logic and language.
Yes, state and local governments could take steps to protect public order and fight against violence. But those moves now might be limited by a right, proudly brandished by an individual, which at some level might trump the public need. Over the years, communitarian critics have argued that American culture stresses rights over responsibilities. A constitutional vision that enshrines gun rights risks becoming a parody of that individualist vision. But so far, judges have steered away from that mistake.
The most significant new cases have addressed the question of whether people can carry loaded guns outside the home. Here the NRA is pushing hardest for new changes; this is where police insist that gun rights could start to impinge on law enforcement. Does a right to have a gun in “hearth and home” include the right to carry a gun down a busy city street?
So far, nearly all courts have upheld “concealed carry” laws. One of the oldest such laws is in New York, the Sullivan Act, that pioneering urban gun control passed a century before by Big Tim Sullivan. Gun rights lawyers challenged its constitutionality, in particular the requirement that New Yorkers could get a license to carry a weapon only if they show “a special need for self protection distinguishable from that of the general community or persons engaged in the same profession.” The Second Circuit Court of Appeals rejected that bid in Kachalsky v. Cacace. Judge Richard Wesley, appointed by President George W. Bush, wrote for a unanimous panel. Robert Katzmann joined him; he was a respected former Brookings Institution scholar who was one of Bill Clinton’s last judicial appointments. So did Judge Gerald Lynch, an Obama appointee. The judges explained their “assumption” that “the [Second] Amendment must have some application” outside the home. Kachalsky said that the law should be subject to intermediate scrutiny and ruled it to be substantially related to an “important governmental interest.” The opinion cited history, too—a century’s worth of judicial support for a law, as a court ruled in 1913, that “picked out one particular kind of arm, the handy, the usual and the favorite weapon of the turbulent criminal class.” (History, at least, from a time that more closely resembles ours than the colonial moment invoked by Heller.) After the appeals court upheld the state’s strict gun law, the plaintiffs appealed to the U.S. Supreme Court, which refused to take the case.
But not all courts stood aside as readily. Possibly the most unnerving decision came in Chicago. McDonald had nullified the city’s law that barred a loaded gun to protect “hearth and home.” Now a gun rights group challenged another Illinois law, which prohibits the carrying of a loaded weapon outside the home. The Seventh Circuit Court of Appeals agreed and overturned the law.
The opinion’s author? None other than Richard Posner. Fresh from his flame war with Scalia, Posner had kept up his public commentary on Heller’s overreach. In a 2011 blog post, he lamented “the unwisdom of the Supreme Court’s recent decisions that have created—on the basis of a tendentious interpretation of the drafting history of the Second Amendment and an intellectually untenable (as it seems to me) belief in ‘originalist’ interpretations of the Constitution—a constitutional right to possess guns for personal self-defense.” Now Posner was charged with faithfully implementing the Supreme Court’s doctrine, the job of a lower court judge. His opinion was a masterpiece of passive aggression. Posner cites the historians who argued against the individual right, with gusto and at length. “The Supreme Court rejected the argument. [Illinois asks] us to repudiate the Court’s historical analysis. That we can’t do.” Heller’s version of history was “debatable,” but it controlled.
Instead of holding back, though, Posner went further—well beyond what Scalia’s and Alito’s rulings required. “Twenty-first century Illinois has no hostile Indians,” Posner explained. “But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower.” It would make no sense to say that an individual has less scope to defend herself on the streets than at home. Posner edged close to refus
ing to apply any level of scrutiny at all. Perhaps, Posner reasoned, the law in question makes Chicago’s streets less safe, though economic and crime studies cut both ways. “Anyway the Supreme Court made clear in Heller that it wasn’t going to make the right to bear arms depend on casualty counts.” Some suggested that Posner, who spent a career preaching cost-benefit analysis (casualty counts), verged on satire. He especially had argued that urban areas should be able to enact policies that fit their needs, rather than being forced to adhere to the norms of rural voters and transient national political majorities. His personal views aside, Posner chose to write an opinion that clearly extended Second Amendment rights outside the home. He and the other judges gave the Illinois legislature a deadline to revise its law. No longer would Illinois be the only state that barred citizens outright from carrying a concealed weapon.
Posner’s ruling and the scramble to rewrite the statute came amid armed mayhem in Chicago. On Father’s Day weekend 2013, forty-seven people were shot and nine killed. On July 4th weekend, as lawmakers finalized their plan, sixty-seven Chicagoans were shot, and twelve died from their wounds. A journalist asked one resident to explain how the sound of gunfire differs from a firecracker. Shots rang out. “That’s the difference,” he explained. The outcome in the state capitol at Springfield was ugly. Rural officials dominated. They crafted a bill that allowed Illinois citizens to carry concealed weapons, requiring a background check and training. Law enforcement could object. And nobody could carry a loaded weapon onto the El or other public transportation. But in a truly unnerving bit of codified machismo, rural lawmakers insisted that gun owners be able to carry their loaded weapons into a bar. Governor Pat Quinn vetoed the measure. The legislature overturned the veto on the last day before the court’s deadline.