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Jan 20, 2013

Firearms and the Supreme Court


Introduction
During oral arguments in the case of McDonald v. City of Chicago (2010), Justice Scalia mentions something very interesting that you should keep in mind while reading this paper. He said “If there’s a constitutional right, we find what the minimum constitutional right is, and everything above that is up to the states” (Scalia, 2008 Audio).  In fact that is what he did in writing for the majority in District of Columbia v. Heller (2008). From 2008 until 2010 the court examined, defined, incorporated, and applied to the states the protection of an individual’s right to possess a firearm in their home for private self-defense.
Certainly one may view these as extraordinary accomplishments, but as with every other judicial ruling there are vast number critics. Many scholars argue that both rulings have essentially left judges, legislators, and citizens with more questions than answers. Moreover, they argue that the court failed to provide any guidance to as what the proper standard of review to be utilized when dealing with the new right found in Heller. I disagree with those claiming the Supreme Court failed to provide guidance to lower courts regarding the proper standard of review. Rather, the guidance they claim is lacking can clearly be found in both of the written majority opinions. 
District of Columbia v. Heller (2008)
Until the 2001 in case of United States v. Emerson (2001) the Second Amendment was viewed as being a collective right in connection with militia service. The Emerson case was the first to hold that the Second Amendment held an individual right rather than just a collective right. This ruling may very well have sparked the fire within gun advocates and other around the country and eventually take them to the Supreme Court in 2008 (Doherty, 2008).
 In June 2008 the United States Supreme Court performed its first thorough and in-depth examination into the meaning of the Second Amendment. In the case of District of Columbia v. Heller (2008), Justice Scalia wrote the majority opinion and he held that the Second Amendment protects an individual’s right to possess a firearm in their home for self-defense (Scalia, 2008). Washington D.C. arguably had the most restrictive regulations on handguns in the country. Handgun possession is banned under District of Columbia law. The law prohibits the registration of handguns and makes it a crime to carry an unregistered firearm. Furthermore all lawfully owned firearms must be kept unloaded and dissembled or bound by a trigger lock unless they are being used for lawful recreational activities or located in a place of business (Scalia, 2008).
Respondent Heller was a D.C special police officer and authorized to carry a handgun while on duty. When Heller applied for a registration certificate that would allow him to keep a handgun in his home, he was denied. There were 3 provisions of the Districts handgun ban challenged in this case. However, after reading and listening to the oral arguments and opinions, it seems clear that the primary goal of the court was to examine the meaning of the Second Amendment and determine whether or not there were any rights protected by it. The District Court dismissed Heller’s complaint. The Court of Appeals for the District of Columbia Circuit reversed and directed the District Court to enter summary judgment in favor of the District of Columbia. The Court of Appeals construed Heller’s complaint as seeking the right to render a firearm operable and carry it in his home only when necessary for self-defense, and held that the total ban on handguns violated the individual right to possess firearms under the Second Amendment. The Supreme Court granted certiorari (Scalia, 2008).

Scalia delivers an overwhelming 64 page historical analysis of every word in the amendment. Due to page limit restrictions I will give the main points as concisely as possible. The right of the people to bear arms pre-existed the creation of the constitution therefore it seems clear that the right was very important, possibly even fundamental to the framers. The prefatory clause is militia related but that does not limit the operative clause (Scalia, 2008).
Historically, the primary way kings and tyrants would suppress any opposition to their rule was to disband the peoples militia and also take their firearms. Consequently, since congress funds our militia and could therefore take away their firearms, the right of the people to keep and bear arms shall not be infringed. In other words the right refers to an individual right as in the citizens as opposed to a collective right. Scalia also stated “This right is not unlimited. Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons, mentally ill, or laws forbidding the carrying of firearms in sensitive places” (Scalia, 2008).
Justice Stevens and Justice Breyer each wrote dissenting opinions and they both joined each other’s opinion. In Justice Stevens dissent the most notable problem he had with the majority’s opinion was that it threw the court right into the middle of a debate that has historically been subject to the political process. Moreover, he argued that the political process is far better at dealing with these issues, but now the court has stepped in and essentially taken on the role of a legislature creating a new law (Card, 2009). In his lengthy dissenting opinion, Justice Breyer primarily argues that the court should develop an interest balancing test. His test would basically be the equivalent of the level intermediate scrutiny that the court already uses. However, he suggests that we should give more deference to the legislature in Second Amendment challenges (Card, 2009). 
Controversy over Scalia’s opinion began the day it was announced. The first claim of their individual right to possess a handgun after the ruling in Heller, came in the case of United States v. McCane (2009). In this case McCane was arrested for driving with a suspended license and after a search of his vehicle turned up a .25 caliber pistol, he was also charged with being a felon in possession of a firearm. He was found guilty by the trial court but while awaiting appeal The Supreme Court issued its opinion in the Heller case. During his appeal he claimed that he now had a right to possess the pistol found in his car, but the appeals court upheld his conviction. However, the court did struggle with defining what prohibitions are considered “longstanding” and therefore valid as per Heller. The court eventually moved on stating that since McCane was a multiple felon the new right would not be enjoyed by him (Mouritsen, 2010).
Otis McDonald and His Journey to the U.S. Supreme Court
Otis McDonald was born in Louisiana in 1934. His parents were both sharecroppers that worked hard to instill a strong work ethic and a sense of pride in their son. In 1951, during the heart of the Great Migration, in which millions of African American’s moved from Southern states to Northern states, Otis asked his mother for $18 so that he could make his way North. Eventually he settled down in Chicago where he went to work as a janitor for the University of Chicago where he retired as a father of 8 in 1997(Mastony, 2010)
In 2008, after his successful argument in the case of District of Columbia v. Heller (2008), attorney Alan Gura set his sights on Chicago and its strict handgun ban that closely resembled the ban Washington D.C. formally had. Gura established connections with 12 Chicago residents and proceeded to interview them over the phone and email. He finally narrowed the field down to 4 people in which he would represent in a future lawsuit. The 4 were Adam Orlov who was a partner in a trading firm. David Lawson, a white software engineer. Colleen Lawson, the wife of David Lawson, she was a hypnotherapist. Lastly, there was Otis McDonald, a black janitor (Mastony, 2010).
McDonald’s concern over Chicago’s push for a widespread handgun ban led him to begin attending pro-gun rallies in 2005. As he became more involved in the rallies, he caught the attention of Valinda Rowe. Rowe was one of the leading activists, and upon hearing that Gura was looking for potential plaintiffs to challenge the city’s ban, she gave Gura McDonald’s phone number. Eventually Gura flew to Chicago to meet with the 4 people he selected and decided that McDonald would be the lead plaintiff, thus creating McDonald v. City of Chicago (2010). At one point during their meeting McDonald said “Why would you name it after me? Is it just because I’m the only black” (Mastony, 2010)? Although he was only joking when he said that, it would end up playing an interesting role in Gura’s development of his argument.
McDonald had firsthand experience when it came to being a victim of the widespread crime wave that took place in his neighborhood. His house was burglarized three times in 1980’s and 1990’s. More recently a couple of teenagers had surrounded his car while pointing a gun in his face and making death threats. That was the last straw for McDonald. Soon after in 2008 he went to the Chicago Police Department where he applied for a .22- caliber pistol and thus setting the lawsuit into motion (Mastony, 2010).



McDonald v. City of Chicago (2010)
This litigation began when Chicago residents brought suit challenging local ordinances that essentially banned all handgun possession by anyone in the city. Specifically, the petitioner Otis McDonald sought a permit to purchase a handgun to be kept in his home for safety, but his application was denied. Soon thereafter McDonald and 3 other petitioners filed suit against Chicago’s handgun ban.  The district court dismissed the suits and the U.S. Court of Appeals for the Seventh Circuit affirmed (Mastony, 2010). Upon the granting of certiorari by the U.S. Supreme Court, the McDonald case was joined by a similar case involving the NRA in which Attorney Paul Clement represented. The Supreme Court combined the two and allowed 15 minutes for both McDonald and the NRA during oral arguments. James A. Feldman was hired to represent the City of Chicago.
The main questioned presented in this case is whether or not the right identified in the Heller should be incorporated under the Fourteenth Amendment thus making it applicable to the states. Moreover, it would also provide protection from infringement by state actions. Shockingly, Mr. Gura on behalf of the petitioners argued that the right found in Heller is one of the privileges or immunities of national citizenship and therefore should be incorporated via the Privileges or Immunities Clause of the Fourteenth Amendment. On the other hand, Mr. Clement on behalf of the NRA argued that the right should be classified as a fundamental right and incorporated via the Due Process Clause of the Fourteenth Amendment. Mr. Feldman, representing Chicago, maintained that the city’s handgun ban was necessary to save human lives. For years Chicago claimed that the total ban of handguns within city limits had saved hundreds of live. Furthermore, Chicago claimed that its banning of handguns was a proper exercise of its police powers to protect its citizens. 
In a 5-4 decision the Supreme Court reversed the Seventh Circuit’s ruling. Justice Alito wrote the majority opinion holding that “Rights found to be fundamental to the Nation's scheme of ordered liberty" or that are "deeply rooted in this Nation's history and tradition" are appropriately applied to the states through the Fourteenth Amendment. The Court restated that the right found in Heller was deemed to be "fundamental" and "deeply rooted” (Alito, 2010). Moreover, the court rejected the argument made by McDonald and instead incorporated the Second Amendment under the Due Process Clause.
Justice Stevens wrote a dissenting opinion and Justice Breyer wrote a separate dissenting opinion in which justices Ginsburg and Sotomayor joined. The first of four points Justice Breyer argues is that the fear of the federal government taking away the arms of the militia was the reason the Second Amendment was codified. He then mentions that there is no consensus in America that the possession of a firearm for self-defense is a fundamental right. Thirdly, he looks at the other rights that have been incorporated and argues that unlike those rights, the right to possess a firearm for self-defense does not advance any constitutional objective (Oyez, 2009).
Specifically, he states the constitutions objective to protect the rights of a minority against acts of a majority, such as the First, Fourth, and Eighth Amendments effectively do. Lastly he argues that there is a substantial reason to believe that the incorporation of this right will drastically interfere with the constitutional objectives of courts and legislatures and the states to the federal government. Essentially he claimed that states have already established extensive laws and regulations regarding firearms and by incorporating this new right, all such laws and regulations are now subject to constitutional challenges. Furthermore, he asks how federally appointed judges compared to elected representatives are better suited to answer all of the questions that are sure to arise (Oyez, 2009).
Aftermath & Implications of Heller & McDonald
The first question that came to my mind after studying these cases is whether or not the rate of crimes involving handguns increased or decreased in D.C. and Chicago after their handgun bans were struck down. I researched this very question extensively and only found one article with any sort of answer which I find as shocking as the results I found. According to John Lott, who hold a Ph.D. in economics with focus on research in law and economics the crime rates for Washington D.C. and Chicago after their handgun bans were struck down are as follows (Lott, 2011)
Crime rates for Washington D.C.
·       Homicides from 2008-2012 dropped -35%
·       Robbery with a gun dropped -10.3%
·       Assault with a gun dropped -24.1%
·       Total violent crime dropped -9.5%
Crime rates for the City of Chicago from Jan-Jun 2010 and Jan-Jun 2011:
·       Murder dropped -14%
·       Robbery dropped -3.8%
·       Aggravated assault and aggravated battery combined dropped -27.3%
·       Total violent crime dropped -8.8%    (Lott, 2011)
Although the national crime rates have been dropping for years, D.C. and Chicago’s rates have surpassed it. Accordingly the notion of more guns less crime may actually have some substance to it.
Soon after the McDonald opinion was read there was a flood of challenges against federal, state, and local gun laws and regulations. One example is the case of United States v. Skoien (2010). The challengers brought suit claiming that the federal law barring gun ownership by people convicted of domestic violence charges was a violation of their Second Amendment right to bear arms. The 3 judge panel of the 7th Circuit Court of Appeals held the law to in fact be unconstitutional in violation of his Second Amendment right to bear arms. However, on appeal to the full 7th Circuit Court of Appeals the court upheld the law. In its opinion the court stated that it applied intermediate scrutiny when reviewing the law (Vernick, 2011).
What makes this case even more interesting is the fact that the court relied heavily on research regarding a few topics: the relationship between domestic violence and firearms, recidivism among domestic abusers, and the risk of guns in their homes. (Vernick, 2011) The majority in the McDonald case held that when addressing constitutional issues, the court does not base its ruling on statistics. However, in his dissenting opinion Justice Breyer argued the exact opposite in regards to Second Amendment issues.
He states “This is a highly statistical matter. Without incorporation it’s decided by legislatures, with incorporation it’s decided by judges” (Oyez, 2009). A few moments later during oral arguments Justice Breyer goes on to say “There is always a big area where its free speech versus a whole lot of things, but not often is it free speech versus life.  When it’s free speech versus life, we very often decide in favor of life. Here every case will be one side guns on the other side life. Statistics, balancing life versus guns” (Oyez, 2009). Apparently the 7th Circuit Court of Appeals agreed with Justice Breyer’s argument that statistics must be considered.
Another case directly stemming from the Heller and McDonald rulings is Britt v. State (2009) in which North Carolina became the first state in the country to hold that a law criminalizing an ex-felon from possessing a firearm to be a violation of their Second Amendment right and therefore is unconstitutional. In 1979 Britt was convicted of felony possession with intent to sell and deliver a controlled substance. He completed his sentence and was released in 1982 and his civil rights were restored in 1987.  The law in 1987 allowed for Britt to purchase certain firearms, and he did purchase some firearms such as sporting rifles and shotguns. However, in 2004, North Carolina passed a law making it illegal for anyone who has been convicted of a felony to possess any sort of firearm (Bone, 2010).
Britt voluntarily turned in his firearms and then filed a suit alleging that the new law violated his right to bear arms. Moreover, Britt had not been charged with any crime in the 30 years since his first and only felony conviction. The trial court held the law was rationally related to a legitimate state interest and therefore valid and the court of Appeals affirmed. However, on appeal to the North Carolina Supreme Court, the court found the law unconstitutional as it applied to Britt because the state could not imply that Britt possessed a significant threat to public safety (Bone, 2010).
After the Britt case, the North Carolina Court of Appeals developed and implemented a 5 factor test in order to determine whether the statute is a “reasonable regulation which is fairly related to the preservation of public peace and safety” (Bone, 2010).
1.     The type of felony convictions, particularly whether they involved violence or the threat of violence.
2.     The remoteness in time of the felony convictions
3.     The felon’s history of law-abiding conduct since the crime
4.     The felons history of responsible lawful firearm possession during a time period when possession of firearms was not prohibited
5.     The felon’s assiduous and proactive compliance with the 2004 amendment
Indiana is not exempt from the implications of the Heller and McDonald cases. In 2011 Indiana enacted a law that prohibits employers from prohibiting their employees from keeping a lawfully owned firearm unloaded and locked in their vehicle while at work. Also in 2011 Indiana passed a law that prohibits local governments in from enacting any type of firearm regulation that is not mentioned in the Indiana Code. In other words Indiana’s General Assembly wanted to establish uniform firearm laws throughout all parts of the state. Therefore, unless it’s already in the Indiana Code, a city may not pass a more restrictive firearm regulation (Bischoff, 2010).
Misconceptions of the Heller and McDonald rulings
In conducting research for this paper I have easily read over 500 printed pages on this subject matter. From law reviews and legal journals to scholarly peer reviewed articles and Supreme Court audio recordings, not to mention an unknown amount of online articles. As a result I would like to think that I have developed at least a very basic understanding of these two cases and their implications to our society. Most of the articles I read were very critical of the Supreme Court’s rulings in both cases.  There are numerous issues scholars have found in the court’s rulings; but the most common issue mentioned by nearly every article I read was that the court failed to offer any guidance to lower courts in regards to what the proper standard of review should be for this new right.
 Many scholars blast the court because in its failing to provide a clear standard of review the court has created a great divergence among state and federal courts. Specifically, as to the proper way they should address the flood of Second Amendment violation claims currently being made. As Justice Breyer argues in his dissent, which is now joined with many in the academic community, nearly all state and federal regulations and prohibition’s regarding firearms are now subject to constitutional challenge. Furthermore, empirical evidence must be considered when comparing a state’s interests vs. an individual’s right to possess a handgun; and that the political process in state legislatures and in Congress are better equipped to answer such questions.
The argument I kept coming across goes on to ask what level of scrutiny should be applied. For example should rational basis be enough? Should intermediate scrutiny be used in this case? What about strict scrutiny in this circumstance? As I progressed in my research my pro-gun stance remained intact but my objective analysis of the issues gave way to Justice Beyer’s argument. It just made sense to me that a single judge, a panel of judges, and even the Supreme Court is not where we should be looking for answers to all the questions that are now presented. Rather, I agree with Justice Breyer that legislatures have the tools to conduct research, analyze their findings, and pass appropriate legislation in accordance with such findings.
Just when I thought I had settled on my theme and format of this paper it hit me. The U.S. Supreme Court did give proper guidance to lower courts. In fact the guidance and the answers to all of the questions about who can possess handguns, where, and what type were answered by Justice Scalia’s opinion in Heller and then passed on to the states in McDonald. What sparked this revolution in my head was an article claiming that originalism is dying and Justice Scalia’s 64 page opinion is proof that his approach to constitutional interpretation is nearly obsolete. The author claims that Justice Scalia’s opinion is so lengthy because he is desperately trying to prove that originalism and textualism together are the best ways to interpret the constitution. 
After reading the article I read the opinions in both cases and I also listened to the oral arguments and opinions for the 50th time. During oral arguments in the McDonald case Justice Scalia says “If there’s a constitutional right, we find what the minimum constitutional right is, and everything above that is up to the states” (Scalia, 2008 Audio). Having that been said, if you read the majority’s opinion in Heller, Justice Scalia is doing exactly what he said above.
We must remember that the Heller case was the courts first full examination of the Second Amendment. Therefore, Justice Scalia thoroughly looked at all parts of the Amendment and found that the minimum right protected is an individual’s right to possess a handgun in their home for lawful purposes. Moreover, the court held that the right is not unlimited and that longstanding regulations regarding who may purchase or carry a handgun, restrictions on where a person may possess a handgun are presumptively valid so long as a law, regulation, or prohibition does not totally ban all handguns and does not restrict law abiding citizens from purchasing one and keeping it in their home for lawful purposes.
The court in the McDonald case applied the right identified by Justice Scalia’s opinion in its entirety to the states. In other words, all law, regulations, and prohibitions that were in place prior to the Heller ruling are still lawful; so long as they do not totally ban all handguns and prohibit lawful citizens from possessing a handgun in their home for lawful purposes. Therefore, all the articles by highly respected scholars and lawyers that I read criticizing the court for not allowing state legislatures to regulate handgun possession; and for not providing the courts with any guidance to answer questions of who, where, what type and handgun, and what standard of scrutiny should be used, are wrong in their criticism. States may do everything they did prior to Heller and McDonald except for what I mentioned above and that really is not much. It seems to me that most scholars view these two cases as creating a narrow right with no definition, but in reality the court simply found the minimum constitutional right and clearly stated that everything above that is up to the states.
What I find most troubling about is that people are looking to the U.S. Constitution to solve all their problems and they expect the constitution to provide answers to every question they have. In doing so they are changing the constitution into something it was never meant to be. They are essentially changing the constitution into a document that is expected to keep up with our current society and reflect our societal views. That type of constitution is not what our founding fathers sought to create. Rather, keeping up with society and reflecting our current society’s views is precisely the job of Congress and our state legislatures.
In nearly every article I read that attacking the Supreme Court, I rarely found any mention about their state constitutions. After all most state constitutions provide greater protections of citizens’ rights than does the U.S. Constitution. Therefore, if they people would rather look to a constitution to reflect their current values, they should first look at their own state constitution. In regards to an individual’s right to bear arms, state constitution’s often times provide a significantly greater level of protection compared to the U.S. Constitution.
Indiana’s Constitution provides “The people shall have the right to bear arms, for the defense of themselves and the State.”  Maine’s Constitution says “Every citizen has a right to keep and bear arms and this right shall never be questioned.” Alabama’s Constitution says “That every citizen has a right to bear arms in defense of himself and the state.” Delaware’s Constitution provides “A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.” Louisiana’s Constitution states “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person” (Volokh, 2006). Only six states fail to enumerate a right to keep and bear arms, California, Iowa, Maryland, Minnesota, New Jersey, and New York (Volokh, 2006).
Conclusion
The U.S. Supreme Court’s rulings in Heller and McDonald can easily been labeled as historical landmark decision’s, but it appears that there are a lot of citizens and scholars that view the decisions as being much more significant than they really are. The court’s decision in Heller was its first examination of the Second Amendment and it effectively did what it was supposed to do. That being that it identified the minimum constitutionally protected right and left everything above that right up to the states via the McDonald case. If we wish to preserve our constitution that has lasted hundreds of years, we must not look to it for answers to every single issue that develops in our society. Furthermore, judges must be cautious when taking an approach to constitutional interpretation that weighs a right or a statue against what they think may happen.
For example instead of looking at the plain text and what the Second Amendment originally meant to the people who drafted it,  Justice Breyer took on the role of a sociologist and relied on statistics as the bases for his opinion. Consequently, as shown above, the handgun ban may have very well increased crime rates in D.C. and Chicago, or at the very least significantly slowed their drop in crime rates. Certainly all methods of constitutional interpretation should be made available depending on the case, but when dealing with an issue that is spelled out in the constitution the easiest and most appropriate method is originalism and textualism. Lastly, state governments, state courts, and federal courts need to stop reading into Heller and McDonald for anything more than what they say. Rather, they need to follow the North Carolina Court of Appeals lead and develop whatever tests they deem appropriate.













References
Alito, S. (2010). Opinion of McDonald v. City of Chicago (United States of America, United States Supreme Court). Washington D.C.: United States Reports.
Bischoff. (2010, January 26). House Bill No. 1065 (The United States of America, Indiana General Assembly, House of Representatives).
Bone, D. (2010). The Heller promise versus the Heller reality: Will statutes prohibiting the possession of firearms by ex-felons be upheld after Britt v. State? Journal of Criminal Law & Criminology, 100(4), 1633-1658.
Card, R. L. (2009). An opinion without standards: The Supreme Court’s refusal to adopt a standard of constitutional review in District of Columbia v. Heller will likely cause headaches for future judicial review of gun-control regulations. BYU Journal of Public Law, 23(2), 259-287.
Doherty, B. (2008). Gun control on trial: Inside the Supreme Court battle over the second amendment. (pp. 19-29). Washington, D.C.: Cato Institute.
Lott, J. (2011, September 22). [Web log message]. Retrieved from http://johnrlott.blogspot.com/2011/08/so-what-happened-to-chicagos-murder-and.html
Mastony, C. (2010, January 30). The public face of gun rights: This is Otis McDonald. Chicago Tribune
Mouritsen, S. C. (2010). United States v. McCane: Judge Tymkovich questions Heller’s disarming dicta. BYU Law Review, 2010(1), 183-197.

Oyez, P. (Producer). (2009). McDonald v. City of Chicago. [Audio File]. Retrieved from http://www.oyez.org/cases/2000-2009/2009/2009_08_1521
Scalia, A. (2008, June 26). Opinion of District of Columbia v. Heller (United States of America, The United States Supreme Court, United States Reports).
Scalia, A. (Producer). (2008). District of Columbia v. Heller. [Audio File]. Retrieved from http://www.oyez.org/cases/2000-2009/2007/2007_07_290
Vernick, J. S., Rutkow, L, Webster, D. W., & Teret, S. P. (2011). Changing the constitutional landscape for firearms: The U.S. Supreme Court’s recent Second Amendment decisions. American Journal of Public Health, 101(11), 2021-2026.
Volokh, E. (2006). State constitutional rights to keep and bear arms. Texas Review of Law & Politics, 11(1), 192-216.

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