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October 19, 2009

Should (and will) SCOTUS discuss standards of review for the Second Amendment when deciding incorporation?

The question in the title of this post is the question that I will be asking the students in my Second Amendment seminar tomorrow.  I think it is a good question without an obvious answer, and one that I suspect is being given some thought by some folks now working on merits or amicus briefs in the McDonald case.  Any astute thoughts, dear readers? 

A few related new and old Second Amendment posts:

October 19, 2009 at 03:48 PM | Permalink


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Doug, here is a suggestion on the burden of proof and the standard of proof which tracks Justice Scalia's opinion in Heller. If a statute prohibits the keeping of a firearm of a type in existence at the time of the founding, for self defense in the home, then the statute is presumptively unconstitutional and the state has the burden of proving a compelling state interest in enacting the statute.

On the other hand, if one of those factors is missing from the case then the application of the statute to the def is presumptively constitutional and the burden is upon the def to show that the statute fails the rational relationship test. In other words, the def has to show that the connection between the statute and the conduct regulated is irrational.

Whether it makes sense or not, Justice Scalia drew a distinction between keeping a firearm and bearing a firearm. The remainder of the factors I believe relate to the right being fundamental. But it is too simplistic to say that keeping a firearm is fundamental without factoring in the context within which the keeping right is exercised. It is not a fundamental right for football players to keep pistols in their pants at night clubs. It is not a fundamental right for a convicted felon to walk around town with a gun, although it may be fundamental for a convicted felon to have a rifle, shotgun or pistol in his home exclusively for use in self defense.

Also, there may be circumstances in which it is irrational for a statute to prohibit a convicted felon to possess a gun, like in NC Supreme Court's decision in Britt, a nonviolent felony from decades back by a person who wants to hunt deer and has lived an exemplary life since a minor felony conviction.

Posted by: bruce cunningham | Oct 19, 2009 9:48:19 PM

I'm not sure any form of guidance would do it, but I would almost like to see the Supremes say something that makes courts take a serious look at the various claims that get filed. So far it looks like every court wants to use Heller as a means for ducking the question rather than actually examining it. Even the 9th did that despite their incorporation finding.

Posted by: Soronel Haetir | Oct 19, 2009 10:46:47 PM

No. If SCOTUS wanted that issue briefed, it should have accepted cert on that issue. Addressing that issue pre-judges the merits of the incorporation question. The incorporation question has a simple yes or no answer. If the answer is no, then this case isn't an appropriate one in which to address standard of review. Reaching to address the standard of review greatly complicates oral argument and briefing off the issues.

Suppose that it is incorporated. Normally, once the issue of incorporation is resolved, the issue ought to be briefed and argued below. Heller's examples provide a starting point for a large enough of cases, and the theoretical justification given for permitting incorporation will provide a framework for analyzing the standard of review. Those examples make clear that while the Second Amendment right exists as an individual right to use for the purpose of self-defense, that it is not absolute and that it permits considerable regulation.

Even if the answer is "yes," states may have power under the "well regulated militia" clause to enact gun controls that the federal government does not, depending on the extent to which the Second Amendment is seen as having a federalism component, even if a prima facie case is made that the right is violated.

Any major doctinal innovations in the selective incorporation doctrine, which is within the scope of the questioon upon which cert was granted, could impact any of the the other provisions of the bill of rights (e.g. looking to privileges and immunities under the 14th Amendment, rather than due process under the 14th Amendment, as a basis for incorporation, or shifting from selective to total incorporation). A move to total incorporation, for example, would immediately invite cases to establish the 7th Amendment as binding on the states, to declare non-unanimous juries unconstitutional in the two states that have them, and to figure out how to apply the right to a grand jury indictment in capital and infamous crimes to states that don't routinely employe grand juries in felony cases.

Also, while Heller fudged a bit on the issue of a standard of review, the examples in its dicta has been clear enough to resolve the mill run of cases on the merits. Just because there could be an infinite number of kinds of gun control statutes, doesn't mean that there actually are. Legislators are the quintessential copycats. Probably ten different kinds of statutes provide enough examples to resolve 99.9% of the cases.

Posted by: ohwilleke | Oct 20, 2009 6:22:20 PM

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