Concurring Opinions » Second Amendment

Federalism and the SAGs’ Brief in McDonald

Joseph Blocher — Mon, 20 Dec 2010 22:40:27 +0000

A few weeks ago, before I got caught up with finishing the semester and creating an exam, I wrote up a post exploring the role of State Attorneys General (SAGs) as agents of popular constitutionalism. In it, I asked whether that role is complicated by whatever obligations SAGs have to represent the interests of the states qua states, as opposed to the interests of “the people.” I used the SAGs’ McDonald v. City of Chicago amicus brief as an example, since it argued for incorporation of the Second Amendment and therefore seemingly against the interests of the states, while advocating a right that three-quarters of the American people support. Since I’m presently trying to avoid grading the aforementioned exam, now seems like a perfect time to revisit the first of those premises — namely, that the argument for incorporation in McDonald cannot be justified on the basis of state interests. The SAGs themselves argued that it could, though I have a hard time seeing how.

The SAGs argued that “amici States are particularly concerned when the Court engages in constitutional or statutory interpretation that implicates federalism issues. The incorporation of the Second Amendment presents no such concerns.” Holding aside the merits of the SAGs’ argument on originalist or other grounds — I’m focused on the role of the SAGs here, not the meaning of the Second Amendment directly — how can it be that incorporation presents no federalism issues? And how can arguing for incorporation be in the interests of the states qua states?

First, the SAGs suggested that the states needed federal judges’ help to protect their citizens from local governments: “Unless the ruling of the court of appeals below is reversed, millions of Americans will be deprived of their Second Amendment right to keep and bear arms as a result of actions by local governments, such as the ordinances challenged in this case.” This sounds dramatic, but I don’t see why states should need to call on federal courts to protect them and their citizens from their own cities, since the states can simply preempt local gun control if they wish. In fact, Illinois filed an amicus brief supporting Chicago in McDonald, noting that the state had chosen to leaven firearms laws open to local solution and reasonable experimentation to meet local needs. Conversely, all of the thirty eight states arguing in favor of incorporation (plus seven more) have preempted some or all local gun regulation.

Second, the SAGs argued that “[e]nforcement of the Second Amendment right to keep and bear arms against state and local governments is especially important in an era of robust interstate travel and commerce,” invoking Saenz v. Roe and the constitutional right to travel. But harm to robust interstate travel and commerce isn’t a standalone argument for incorporation, is it? Were it otherwise, Saenz – which struck down a California law conditioning welfare benefits on a person’s length of residence in the state — would stand for a constitutional right to welfare benefits, rather than a right to travel.

Third, the SAGs claimed to have “an interest in the proper interpretation of the Second Amendment in order to facilitate the development of similar protections under state law. Interpretive guidance from this Court, and from other federal courts, would help the States as they construe and enforce their own, analogous state-law protections — including the 44 state constitutions that guarantee a right to keep and bear arms.” I have a hard time with this argument, too. If for whatever reason the state courts want “interpretive guidance” from federal courts, they can borrow it whether or not the Second Amendment is incorporated. If they ultimately choose not to do so in the specific context of the “individual” right to keep and bear arms, it would probably only be because the states have a far better developed jurisprudence on the subject that the federal courts do. As a practical matter, it seems more likely that incorporation will not “facilitate the development” of state constitutional law, but rather displace it.

Am I missing something else? If not to present the constitutional interests of “the people” directly, why was this brief ever filed?

Constructive “Keeping” and the Second Amendment

Joseph Blocher — Wed, 08 Dec 2010 14:38:17 +0000

Eugene Volokh recently linked to an interesting case involving the Second Amendment rights of people who share a home with someone barred from possessing guns. The case’s result seems to turn on the fact that the prosecution simply failed to show that the defendant intentionally helped her boyfriend (a felon) possess her gun. But it also raises interesting questions about what counts as “keeping” and “bearing” for the purposes of the Second Amendment, particularly as those concepts relate to criminal liability for constructive possession.

Inasmuch as debates about the Second Amendment concern its text, they tend to focus on terms like “well regulated Militia,” “the people,” “the right,” and “Arms,” with the definitions of “keep” and “bear” essentially following along with one’s preferred reading of the Amendment’s purpose. If the Amendment is about protecting militias from disarmament, then “keep and bear Arms” is a unitary phrase with a military meaning. If it’s about an “individual” right to self-defense (or something else), then “keep” and “bear” mean simply “have” or “carry,” as the Court held in Heller.

Since Heller, much attention has been given to what types of “the people” have Second Amendment rights, and what types of “Arms” they can bear. But the meanings of “keep” and “bear”–even now that they’ve been redefined as “have” or “carry”–also raise complicated questions, which don’t seem to have attracted the same amount of attention. What amount of control must I exert over a gun in order to assert that I am “keeping” it for Second Amendment purposes? Presumably it doesn’t have to be on my person or even in my immediate control, or else keeping and bearing would mean the same thing, and I wouldn’t have a Second Amendment right to store my guns in an attic or a shed.

Is constitutional “keeping” (i.e, “having”) simply analogous to “possession” in criminal statutes? The concepts are certainly closely related, since a felon’s loss of the right to keep includes a loss of the right to possess. That suggests possession is at the very least a subset of keeping. And if that is so, is there some version of “constructive keeping” akin to constructive possession? Knowledge and intent to control a gun are usually treated as essential elements of constructive possession under state and federal criminal law. That makes sense, given the mental state requirements we generally have in criminal statutes. But does that necessarily mean that they are also essential elements of “keeping” for Second Amendment purposes?

State Attorneys General and Popular Constitutionalism

Joseph Blocher — Mon, 06 Dec 2010 13:43:28 +0000

David Pozen recently published his second article on judicial elections in the pages of the Columbia Law Review. In the first, “The Irony of Judicial Elections,” 108 Colum. L. Rev. 265 (2008), he explored the “new era” of judicial elections and discussed the tradeoff between those elections and the traditional role of the judiciary. In the new piece, “Judicial Elections as Popular Constitutionalism,” 110 Colum. L. Rev. 2047 (2010), he investigates the linkages between judicial elections and popular constitutionalism. In reading it, I couldn’t help but wonder if there’s another set of actors at the state level who are also highly relevant to the enterprise of popular constitutionalism: the state attorneys general.

State attorneys general (“SAGs”) are elected in all but a handful of states, and therefore presumably have some incentive to speak for “the people.” Increasingly, they seem to be doing so in state and federal constitutional cases, either by strategically bringing constitutional challenges or by filing amicus briefs. Those kinds of filings have put SAGs at the forefront of some of the most important constitutional controversies of the past few years, including the current challenge to healthcare reform. Perhaps that makes them one of the more effective, but underappreciated, mechanisms of popular constitutionalism.

And yet there’s something odd about treating SAGs as mouthpieces of popular constitutionalism. State attorneys general, after all, are often thought to–and claim to–represent the interests of the states qua states, and not simply the preferences of the people who elected them. What are they to do, then, when the former seem to be in tension with the latter? In McDonald v. City of Chicago, thirty-eight SAGs filed an amicus brief asking the Supreme Court to incorporate the Second Amendment against their states, all of which already recognized an “individual” right to bear arms under their own constitutions. This was, as Justice Stevens pointed out in his dissenting opinion, something of a “puzzling” position, at least if one believes that the SAGs’ role is to speak for the states as states. If, however, the SAGs speak directly for “the people”–most of whom support the “individual rights” reading of the Second Amendment–then the McDonald amicus brief might make more sense.

I’m not sure how to balance these at-times competing roles and interests, but it does seem that the state attorneys general should play a more central role in accounts of popular constitutionalism, particularly since it seems as if they’re playing an increasingly prominent and self-conscious role in the development of federal constitutional law.

Another possible reason for the LAT story on NRA v. Chicago

Kaimipono D. Wenger — Thu, 04 Jun 2009 15:11:03 +0000

Over at the conspiracy, Eugene Volokh points out an odd fact — while the L.A. Times gives rather extensive coverage to the recent NRA v. Chicago, it gave no coverage at the time to Nordyke v. King, which was a California case. Eugene offers a few possible rationales for this difference:

To be sure, there are possible explanations: Today’s story was by the Times’ Supreme Court reporter, and this case is more likely than the Ninth Circuit case to go to the Supreme Court, for reasons I described here. The underlying controversy in the Seventh Circuit (a handgun ban) is more likely to interest people than the underlying controversy in the Ninth Circuit (a ban on gun possession on county property). And it’s made higher profile by the controversy about Judge Sotomayor’s participation in the Second Circuit’s no-incorporation decision.

At the same time, the broad legal issue — whether state and local governments are bound by the federal right to bear arms — is the same. The Ninth Circuit decision was the one that created the circuit split, and it did tee things up for the Court to consider the Second Circuit’s incorporation case (again, discussed here) — perhaps not perfectly, but still in a way that strikes me as newsworthy. The Ninth Circuit decision is the one that suggests some gun laws may be unconstitutional, which seems to me a pretty newsworthy matter. And the Ninth Circuit case was more local than the Seventh Circuit case.

(In comments, VC readers seem to mostly be of the opinion that the story shows a concerted editorial campaign to promote gun control through skewed news reporting.)

I’d suggest another possible reason — there’s a man-bites-dog aspect of the story which Eugene doesn’t mention; and no, it’s not the cheesy “wow, Republican judges can rule against gun rights” factor. Rather, it’s the fact that incorporation was widely expected to have an easier road than this.

For instance, take a look at a few recent statements made by VC bloggers:

Dale Carpenter, last year:

Add to all of this the fact that the Court repeatedly compares the incorporated First Amendment to the unincorporated Second Amendment as a guarantee of important individual rights. A court that believes the Second Amendment is comparable to the hallowed First Amendment is unlikely to leave protection of the right to the mercy of legislative majorities in states and cities.

Whichever specific route the lower courts now choose — the Citizenship Clause, the Privileges and Immunities Clause, the Due Process Clause — it seems the Supreme Court is providing a road map and is strongly suggesting that the ultimate destination is incorporation.

Eugene Volokh, last year:

My questions: (1) The main issue in this case is to what extent the Second Amendment applies to the states via the Fourteenth Amendment. It’s at least conceivable that the Amendment might apply to the states differently than it does to the federal government; this is an unlikely result, but one the Court reached in the early 1970s as to the Jury Trial Clause, which has been read as requiring unanimous juries in federal prosecutions but not state prosecutions.

Randy Barnett, earlier this year:

Moreover, since the path breaking work by Michael Kent Curtis appeared in the 1980s, there has formed a remarkable scholarly consensus among those familiar with the historical record, and this consensus is entirely nonideological. Indeed, on February 4, 2009, the self-described “progressive” Constitutional Accountability Center filed a brief in the consolidated case of McDonald, et al., and National Rifle Association of America, Inc., et al., v. City of Chicago, et al., and Village of Oak Park, now pending in the Seventh Circuit, arguing that the individual right to bear arms recognized in District of Columbia v. Heller, is “incorporated” against state action via the Privileges or Immunities Clause of the 14th Amendment. CAC’s brief (available here) was filed on behalf of professors Richard Aynes, Jack Balkin, Michael Kent Curtis, and Michael A. Lawrence. Their brief speaks only to the incorporation issue and did not argue that the challenged gun regulations are unconstitutional.

These statements reflect the general opinion as I’ve observed it. I asked Alan Gura about incorporation at a talk recently; I talked with Mike O’Shea about it; everyone I’ve talked to who follows the issue assumed that incorporation, if not quite a slam dunk, was something that was quite likely to happen — and Maloney was viewed as the quirky outlier. It’s a genuine surprise to see a(nother) circuit court unanimously ruling against incorporation; and ultimately, surprises are often what make it into the news.

Add that to the factors that Eugene notes (i.e., Nordyke was about a more obscure issue; NRA v. Chicago was about a much bigger-impact law) and it doesn’t seem quite as surprising (or sinister, as VC commenters suggest) that the LAT’s Supreme Court reporter took a pass on Nordyke but wrote about NRA v. Chicago.

Image: Wikicommons

Practical Advice: Don’t Let Your Client Pay You in Guns

Dave Hoffman — Mon, 01 Jun 2009 18:47:32 +0000

Wow. A pharmacist accused of murder decided to pay his lawyer with his firearm collection. When the Judge presiding over his case inquired as to how many guns, exactly, that collection entailed, a constitutional fight ensued. Quick: which amendment gets play? (Hint: it’s not the 2nd!)

“I gave every weapon of mine to my attorney. I swear to the Lord,” Jerome Jay Ersland said.

Oklahoma County District Judge Tammy Bass-LeSure last week allowed Ersland, 57, of Chickasha to be released on $100,000 bail but she banned him from any access to weapons. The hearing today was to see if he had complied with her order.

Ersland told the judge he no longer owns the weapons. Defense attorney Irven Box said he took the weapons and other personal property from Ersland as payment of part of the attorney fees in the case.

Box told the judge he has accepted other unusual payments in the past, including comic books.

The case arises out of Ersland’s shooting – in purported self-defense – of an individual robbing his store. You can see the video here. And as for the constitutional right to withhold information about Ersland’s gun collection? That would be the right against self-incrimination:

District Attorney David Prater also said prosecutors could use the answer to that question against Ersland at trial.

The judge at one point said she would put Ersland back in jail if he didn’t answer her question but eventually she decided not to revoke his bail. She said she had learned a lesson and will not in the future let a defense attorney collect a defendant’s weapons.

This advice is generalizable. Take cash over credit, and credit over barter. And never, ever, take the instruments of the crime.

A Talk About Heller at ‘Bama

Mike O'Shea — Wed, 27 Aug 2008 02:56:32 +0000

This Thursday I’ll be in recently rain-swept Tuscaloosa, giving a talk at the University of Alabama School of Law on “The Future of the Right to Arms After D.C. v. Heller.” at the kind invitation of ‘Bama’s chapter of the Federalist Society. I hope to discuss Heller‘s revision of U.S. v. Miller, the role of nineteenth-century state court decisions in Heller, and future Second Amendment battlegrounds such as incorporation, concealed carry, and the possible renewal of the expired federal “assault weapons” ban. Time permitting, I’ll also discuss what Heller illustrates about the distinctive character of American conservatism.

The talk will be held at 12:00 p.m. Thursday, August 28, in the Moot Courtroom in the UA Law School building. It would be a treat to encounter some CoOp readers there.

Travel bleg:

I’ve never been to Alabama. Any suggestions for things to do/see during a brief visit to Tuscaloosa or Birmingham (where I’m staying)? I do plan to visit the Birmingham Civil Rights Institute.