Posted 9:45 AM by Robert

Fundamentalism

As noted here in earlier posts, the question of whether the rights expressed in the Second Amendment are to be considered binding on the States is not widely treated in the renewed learning in that area. That omission is understandable in some respects, since the question of the moment is whether the Amendment states an "individual" or "collective" right - a question technically independent of whether the Amendment should be "incorporated" (that is, made binding on the States). However, the Man Without Qualities suggests that it is a mistake to attempt to separate the discussions of these questions Moreover, although the research of Michael A. Bellesiles on eighteenth century America is now discredited, Bellesiles' depiction of a mid-to-late nineteenth century America deeply immersed in a "gun culture" that he and his school admit then enjoyed a firm hold provides vigorous support for finding that the authors of the Fourteenth Amendment, which was adopted at the height of that nineteenth century gun culture Bellesiles establishes, would have considered the Second Amendment right to keep and bear arms to be very fundamental indeed.

Unless the Second Amendment expresses a fundamental right, the courts will defer broadly to legislatures when they seek to curtail or "regulate" that right - even if the right is an "individual right." Under the incorporation doctrine, the federal courts only bind the States to "fundamental rights" found in the Constitution. So the question of whether the Second Amendment creates meaningful restrictions on the ability of any legislature (Congress or those of the States) to curtail or regulate "individual" Second Amendment rights is really inseparable from the question of whether those rights are "fundamental" and therefor made binding on the States through the incorporation doctrine.

Consider the Fifth Circuit Court of Appeals decision in Emerson , which upheld the constitutionality of a federal law prohibiting people subject to certain types of family law restraining orders from possessing guns. The defendant, Emerson, had been indicted under that law, but the lower (district) court had thrown out the indictment on the grounds that the law violated the fundamental right to keep and bear arms under the Second Amendment. On appeal, the Fifth Circuit held that the Second Amendment does protect "individual rights," and articulated a "standard" for evaluating whether a particular law actually infringes that right, saying:

"The district court held that [the challenged law] was unconstitutionally overbroad because it allows second amendment rights to be infringed absent any express judicial finding that the person subject to the order posed a future danger. In other words, the [challenged law's] threshold for deprivation of the fundamental right to keep and bear arms is too low. Although, as we have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country. Indeed, Emerson does not contend, and the district court did not hold, otherwise."

The district court had held that Second Amendment rights were "fundamental." The Fifth Circuit opinion seriously garbles this part of the analysis, which unfortunately makes that opinion very vulnerable. The Fifth Circuit standard will uphold laws that are "limited, narrowly tailored specific exceptions or restrictions [on the Second Amendment] for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." The last part of this standard ("and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country") seems to be make-weight language, because any law that is "not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country" does not need the benefit of an exception in the first place. So the Fifth Circuit's standard may be shortened to allow laws that are "limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable." Is this the kind of standard that normally protects a "fundamental right?"

No. Federal courts do not normally permit restrictions on fundamental rights just because the restrictions are "narrow and reasonable." For example, under the Fifth Amendment Congress cannot validly enact a law requiring people to testify against themselves in criminal cases just because the law is limited to "reasonable and narrow" conditions - such as when nobody else witnessed the acts which constituted an alleged crime with which the defendant/witness is charged. And under the First Amendment a Congressional act restricting core political speech is not validated just because it is "reasonable and narrow." Even permissible restrictions on "commercial speech" have to pass a test far stricter than "reasonable and narrow." And any implicitly suggested similarity to Fourth Amendment "reasonableness" is misleading because the right created by that amendment is the right to be free of "unreasonable searches and seizures." In other words, the "reasonableness" standard is included in the Fourth Amendment right and language, not in the standard of protection given to the right. Nor does the Eighth Amendment permit "cruel and unusual punishment" just because the conditions of such punishment are "narrow and reasonable." Indeed, I am unaware of any precedent that would even uphold a Congressional attempt to remove the right to a federal civil jury trial solely on the grounds that the conditions of the removal were "reasonable and narrow" - and the Seventh Amendment right to a civil jury trial is not even a fundamental right binding on the States.

A fundamental right cannot normally be constrained except where a very high test is met, along the lines of "compelling state interest." There is obviously no "compelling state interest" (or similar fact) supporting the law challenged in Emerson. So if the Second Amendment creates a "fundamental right to keep and bear arms," then the district court was almost certainly correct to overturn the indictment.

Does the Fifth Circuit accept that the Second Amendment creates a "fundamental right?" The Fifth Circuit's "narrow and reasonable" standard isn't much of a restraint. Not surprisingly, the Fifth Circuit reversed the district court and upheld the federal statute challenged in that case, while giving every benefit of the doubt ("deferring") to Congress. None of this is very consistent with the existence of a "fundamental Second Amendment right." But while the Fifth Circuit's standard and behavior are inconsistent with the existence of a fundamental Second Amendment right, the Fifth Circuit's language is curiously hedged and confused on the subject. It says: "In other words, the [challenged law's] threshold for deprivation of the fundamental right to keep and bear arms is too low." Does this sentence just describe the district court approach, which the Fifth Circuit is rejecting? If so, then what's to be made of that too-clever-by-half bit: "Emerson does not contend, and the district court did not hold, otherwise"?

Simply put: The standard actually adopted by the Fifth Circuit implies that the Second Amendment is not a "fundamental right" and that its scope of protection is less than that of the Seventh Amendment right to a civil trial. It is almost inconceivable that imposition of this version of the Second Amendment could be justifiably imposed on the States through the incorporation doctrine, or that it would place meaningful restrictions on the federal government.

With a little more forethought the advocates of Second Amendment rights, especially the authors of the Fifth Circuit opinion, might have avoided these catastrophic results implicit in Emerson. The only description of the prohibited firearm Emerson allegedly possessed appearing in the Fifth Circuit case is: "Emerson on November 16, 1998, unlawfully possessed ... a firearm, a Beretta pistol." The opinion does not say that Emerson had introduced any evidence tending to show that possession or use of a Beretta pistol had some reasonable relationship to the preservation or efficiency of a well-regulated militia. If no such evidence had been introduced, the Fifth Circuit could have expressly adopted the "individual rights" model of the Second Amendment, reversed the district court on those grounds - and not committed itself to a standard which essentially guts the very Second Amendment rights the fifth Circuit is attempting to establish. A reversal on those grounds was exactly what the Supreme Court did in the Miller case, where the Supreme Court held: "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." So the Fifth Circuit may have missed an opportunity to obtain exactly the result they desired while parrotting the very case Second Amendment critics often cite.