Appeals Court strikes down some, upholds other D.C. gun regulations

Great Debates
1

http://thehill.com/regulation/court-battles/254195-us-court-of-appeals-strikes-down-some-dc-gun-laws

I must admit that this doesn’t seem to be a victory for either side. To summarize:

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In a 2-1 decision Friday, a three-member panel of judges on the U.S. Court of Appeals for the D.C. Circuit upheld the city’s requirements that force gun owners to register long guns, get fingerprinted, photographed and appear in person when registering a gun, pay a registration fee and complete a firearms safety and training course.
The court then struck down four requirements that force gun owners to bring the gun they’re registering with them, re-register a firearm every three years and pass a test on D.C. gun laws. The court also did away with a rule that prohibits gun owners from registering more than one pistol within a 30-day period.
[/QUOTE]

I’m confused, though. If the right to keep and bear arms is a substantive due process right under the 2nd amendment (and further applied to the states under the 14th amendment) this standard of review seems to be only rational basis. Ginsburg writes that the upheld laws will “promote public safety.”

I don’t think that could possibly be the correct standard. It should be strict scrutiny. Imagine a free speech case that suppressed speech on the basis of public safety (e.g. no talk about opposition to war because it harms the national policy that protects Americans) or an abortion regulation which required registration with the government.

I’ll admit that I’ve always thought that the tiers of scrutiny in substantive due process cases were very shaky on constitutional grounds (especially in light of the recent SSM case) but shouldn’t we at least be consistent in applying them?

2

Not all substantive rights trigger strict scrutiny. Marriage, yes, speech, yes, voting, no, and apparently gun rights, no.

I don’t see how the statutes at issue affect gun rights, though. The prohibition on registering multiple guns did, since it effectively meant you could only buy one per month. But the registration requirement certainly doesn’t; at least, it’s no more onerous than voter registation requirements.

3

It’s not accurate to say ‘gun rights, no’ at the moment. The magnitude of the impact to gun rights will determine the level of scrutiny used. That’s the two step process that has been outlined and employed at the appellate court level thus far.

Currently CA still has the 1 handgun purchase per 30 day period on the books. Hopefully litigating that will increase the coffers of the gun rights groups in the near future.

4

I’m a little fuzzy on my Con Law, but I thought under the SDP clause when particular rights were deemed fundamental, then strict scrutiny applies, otherwise it is rational basis. There is no middle tier as in equal protection cases.

If we compare gun rights and voting we see the difference. Yes, a 5-4 majority upheld an ID requirement for voting, but that ID was free, and voting is otherwise available to every citizen over age 18 (excepting felons in some states or the insane).

To register a gun, one must pay for the registration, and at least in D.C. be photographed and fingerprinted and take a safety course. Imagine if a state passed a law whereby one had to pay a fee to be registered to vote (not a head tax or poll tax, just a registration fee) plus be photographed and fingerprinted, and complete a class on the responsibilities of citizenship and voting. Struck down in a heartbeat. It seems that a right specifically enumerated in the BOR is held to less scrutiny that the judicially invented right to vote or right to an abortion (again, imagine the outcry about those restrictions for abortion).

The Supreme Court (in Heller and McDonald) seem to say that the manner they are carried (such as forbidding concealed weapons), the limitations to certain persons (felons), the types of weapons not commonly owned (machine guns) may be regulated, and “sensitive areas” may be off limits (schools, airplanes).

It would follow, consistent with other fundamental rights, that the simple ownership of pistols and long guns by non-felons of adult age should not be a permitted regulation, nor should the open carry of these weapons in public.

It would also seem that if a state issues a concealed weapons permit, it must be issued on a non-discriminatory basis.

Putting aside one’s personal feelings about gun ownership, Heller and McDonald seem inconsistent with the idea of an FBI background check just to own and keep one in the home. Most gun regulations seem wholly inconsistent with the way other fundamental rights are treated (e.g. Did you buy a jury trial permit? Oh, then no public defender and a bench trial for you! You weren’t on the list for no self-incrimination? You must testify, etc.)

5

A few points - there is no SDP clause, there is SDP analysis. Free speech is fundamental, but the type of restriction being contemplated controls the level of scrutiny. Speech can be subject to both strict or intermediate depending on context. For example, content-neutral speech restrictions would warrant intermediate scrutiny review, whereas content-based speech restrictions would warrant strict scrutiny review.

Heller laid out a two prong test for 2nd amendment analysis. The first is whether the restriction falls within the scope of 2nd amendment protection. The second prong is the “appropriate” level of scrutiny. The appropriate level was not defined in Heller because the DC laws failed any acceptable level of scrutiny. The court also said that rational basis was not appropriate.