Shotgun News, February 1, 2009, pp. 22-24
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Parks, D.C. Dragging Their Feet
The Heller case struck down D.C.’s ban on handguns, and its ban on having a loaded firearm in your home. The D.C. government is still trying hard to discourage gun use without directly violating the Heller decision. For example, their latest gun control law would require gun owners to re-register their guns every three years, continues their long standing ban on “assault weapons,” require completion of a gun safety course, and have a background check done every six years.1 While gun registration is clearly constitutional, some of these provisions, simply because they impose a repeated cost with no clear safety gain, probably are not—and D.C. is going to get sued, I guarantee it. I don’t think the assault weapon ban is constitutional at all, but you have to fight these battles in the right sequence to win.
When I went to D.C. for the oral arguments in the Heller case, I met with some other gun rights scholars, and discussed what the sequence should be for subsequent suits. My argument was that we should get some other federal laws or regulations struck down first, before trying to get the Second Amendment applied to the states, simply to strengthen the definition of what right the Second Amendment protects. Others did not share that view—and I can’t say that they were wrong.
One area where we are going to be getting a victory without going to court involves national parks. Since the early 1980s, national parks have prohibited possession of loaded firearms by visitors. The Bush Administration, to their credit, decided that this regulation did not make sense, both because it prevented visitors from defending themselves, and because it was inconsistent with the laws of the states in which these national parks are located. As with all such regulatory changes, they could not just say, “We’re changing the rules.” Instead, they asked for public comment, and had to justify the changes based on the various comments that they received. On December 10, 2008, the changes appeared in Federal Register, which is the daily publication of regulations and changes. (If you want to be scared by how many regulations there are—the page number where this change starts is 74966.)
The regulatory change mentions not only that the Heller decision argues for revisiting this issue, since there is clearly a right to self-defense, but also that so many states have changed their concealed weapon permit laws since the current regulations were written. They point out that 48 states now allow concealed carry, and decided that both for reasons of self-defense, and to avoid confusion, national parks will now use the surrounding state’s laws to govern possession of concealed weapons. If Wyoming allows concealed carry, then those parts of Yellowstone National Park in Wyoming will adopt Wyoming’s rules. Loaded long guns are still not allowed, because these are not strictly self-defense weapons. You and I might argue this point, but slow change is better than no change.
What is also interesting in reading the regulatory changes is how the Department of the Interior responded to all the public comments, many of which were traditional gun control arguments. One objection was that visitors should rely on police officers for protection; the Interior Department’s response was that the National Park Service and Fish & Wildlife Service “together employ approximately 3,000 full and part-time law enforcement officers who are responsible for patrolling and securing millions of acres of land, a substantial portion of which is remote wilderness. In these circumstances, NPS and FWS law enforcement officers are in no position to guarantee a specific level of public safety on their lands, and cannot prevent all violent offenses and crimes against visitors.” And then they cited some of the decisions that have found that there is no legal obligation of police to protect anyone from criminal attack.2
The Cato Institute, a libertarian think tank in D.C., was the leader in bringing about the Heller suit. In mid-November, they invited a number of us who had played a part in bringing about the Heller decision to come to Washington for a celebratory brunch. While not everyone who was invited could make it, it was still a pretty impressive collection of gun rights scholars and lawyers in one room. The lawyers whose names I can remember include: Stephen Halbrook, C. Kevin Marshall; Dave Kopel of the Independence Institute; Bob Dowlut of NRA; Alan Gura, who was the lead attorney on Heller. The law professors included Eugene Volokh of UCLA Law School; Nelson Lund of George Mason University Law School; Bob Cottroll of George Washington University Law School; Nicholas Johnson of Fordham University Law School; William Van Alstyne of William & Mary Law School. At my table was attorney Robert Levy, who bankrolled the Heller suit; Don Kates; Dave Hardy; Sandra Froman, former President of the NRA; and Dan Polsby, dean of George Mason University Law School.
We had a lively discussion of strategy and upcoming actions; obviously, I'm not going to publicly reveal the details. But the good news is that there is a strong chance that we are going to win the Nordyke case in the Ninth Circuit Court of Appeals--where our lawyers are arguing that the 14th Amendment incorporates the Second Amendment against the states—opening up the door to demolishing some of the more absurd gun control laws adopted at the state and local levels.
In case it has been a while since government class, what is the 14th Amendment, and what does “incorporates” mean? Congress passed the 14th Amendment in the aftermath of the Civil War, to guarantee that the rights of freed slaves and white Republicans in the South would be protected against arbitrary abuse by the state governments. One provision orders that, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….” There is strong historical evidence that both supporters and opponents of the 14th Amendment agreed that “privileges or immunities” meant the rights guaranteed by the first eight amendments to the Constitution.
Stephen Halbrook’s book Freedmen, The Fourteenth Amendment, and the Right to Bear Arms, 1866-1876 (Praeger Press, 1998), lays out the evidence on this very well—but he is not alone. Even many very liberal legal scholars, sometimes with great pain, recognize that there is a strong argument that this was the intent—to incorporate the protections of the first eight amendments against the states. Unfortunately, the U.S. Supreme Court, starting with The Slaughter-House Cases (1873), simply refused to admit this. A number of us are busily marshalling evidence in scholarly journals right now to argue that the Supreme Court should just admit that they made a mistake over a century ago.
If we can get the Supreme Court to admit that the justices made a serious mistake in the 1870s, then many of the more absurd state and local gun control laws are in deep trouble. The right to keep and bear arms will be on about the same level as the right to freedom of speech, of the right to have an attorney in a criminal case. This doesn’t mean that every gun control law will fall, just as freedom of speech does not prevent laws against incitement to riot, but it does mean that the states will need something a bit stronger than, “We don’t like guns, and we think that they make things worse.” They will have to prove that a gun control law is necessary to public safety—and we know that their side will have a heck of a time coming up with such proof. The proof is generally stronger on our side that restrictive gun control impairs public safety.
If we can’t get the Supreme Court to use the “privileges or immunities” clause to incorporate the Second Amendment against the states, this doesn’t mean that we have completely lost. Another clause of the 14th Amendment declares “nor shall any State deprive any person of life, liberty, or property, without due process of law….” The original goal was to make sure that if you were executed, jailed, or fined, that the state would have given you your day in court, with a right to a jury trial. The U.S. Supreme Court, in the early twentieth century, decided to use this “due process of law” clause to incorporate some of the guarantees of the Bill of Rights against the states. This process by which they have cherry-picked which rights the states are required to protect is called “selective incorporation.” That’s why the First Amendment’s provisions about establishment of religion, freedom of speech apply to the states—but not the Second Amendment. That’s why the states have to follow the Fourth and Fifth Amendment guarantees about search, warrants, and other criminal procedures—but not the Fifth Amendment’s guarantee of indictment by a grand jury.
There’s no logic to selective incorporation. I’ve gone back and read the decisions where the Court has decided that this provision applies to the states but that provision does not—and it is embarrassing how poorly thought out these decisions are. Even many liberals who oppose full incorporation through the “privileges or immunities” clause grudgingly admit that selective incorporation has little rhyme or reason. But selective incorporation still has its fans for one reason: it is the only way that liberals can impose some parts of the Bill of Rights on the states, without imposing the Second Amendment as well.
We might persuade the Court that gun control laws must conform to the due process requirement. If so, then we might be in a position to require states and cities to meet the same standards as are required in trials. For example, imagine if Chicago had to prove that there was a good reason not to let you have a permit to own a handgun. This would not be as good as having a recognized right to own a gun, but if state and local governments were obligated to go to court every time they turned someone down for a gun permit, I suspect that they would start the lose a lot of the arbitrary refusals.
There is also an “equal protection” guarantee in the 14th Amendment, which says that states may not “deny to any person within its jurisdiction the equal protection of the laws.” This is actually a pretty weak protection. The courts, over the years, have come up with all sorts of ways of saying, “Well, Mr. X and Mr. Y aren’t in the same situation.” The courts are astonishingly clever at finding way to prove that there are subtle differences between Mr. X and Mr. Y that, in practice, allow arbitrary application of gun control laws. But there does come a point where even antigun courts have agreed that refusing Mr. X a carry permit, while allowing one to Mr. Y, violates equal protection. If we can get the Supreme Court to rule that the right to keep and bear arms is protected through the 14th Amendment, we can sue state and local governments until the cost of defending (and losing) these suits causes them to abandon arbitrary permit issuance policies.
Keep in mind that there is one great danger. Right now, we have a 5-4 majority on the Supreme Court. If President Obama had a chance to replace even one of the majority with someone to his liking, we would almost certainly lose such a case. Right now, the oldest and feeblest members of the Court are among the four who voted against us in Heller. But when I was at a Federalist Society meeting in D.C. a few weeks back, I heard some concern expressed about the amount of weight that Justice Clarence Thomas has put on in recent years, “a heart attack waiting to happen.” That would be a disaster not just for Justice Thomas, but for gun rights. We need to get one of these cases concerning the 14th Amendment to the Court while we retain that majority.
1 Hamil R. Harris, “D.C. Council Supports Gun Control Revisions,” Washington Post, December 3, 2008, http://www.washingtonpost.com/wp-dyn/content/article/2008/12/02/AR2008120203709.html, last accessed December 21, 2008.
2 Federal Register, 73:238, 74966-72, December 10, 2008, available at http://www.snowflakesinhell.com/wp-content/uploads/2008/12/e8-29249.pdf, last accessed December 21, 2008.