An Individual Right: for discussion

[DocRock]

Humor me. It's a discussion, not an assertion. The question is rather Jesuitical and has no bearing on politics, so they need not enter the discussion.

The Heller decision asserted that the right to keep and bear arms is an individual right, not collective. Each and every person meeting the criteria set forth in a form 4473 has an individual right to keep and bear arms. They lose that right upon conviction of various offenses (let's leave the 'suspension ' of that right under 'Red Flag' laws aside, if we can).

If I, as an individual, possess a right today and, at some time in the near future, a legislative body intends to strip me of my right, or restrict my individual right, on utilitarian grounds, there is usually some concept under the law that the alleged good has to merit the restriction envisaged. Greater legal minds than mine, perhaps those who remember their Bentham better than I do, will hopefully expand.

I have an individual right to keep and bear firearms. Let us say that in my jurisdiction, I have had no other restrictions beyond those in the NFA and GCA. In this jurisdiction, I own several semi-automatic rifles with vast capacity magazines.

The legislature of this jurisdiction takes the view that such firearms are a danger to the public because criminals have used such firearms to commit crimes. Therefore, they draft legislation that will strip me of my right or severely limit my right to keep and bear such firearms as I own.

The question for discussion, rather than immediate dismissal, is whether, regardless of the Second Amendment's prohibition on legislation that would infringe on my individual right to keep and bear arms, a legislature can strip an individual of his or her rights , or restrict them, for utilitarian purposes (the diminution of gun homicide) without demonstrating the utilitarian benefits on a case by case basis?

The legislature is, in effect, saying that the prior individual right to own and bear an AR15, for example, may be legitimately restricted because of the threat that the individual poses to others by owning said firearm. The legislature is, in effect, posing that each individual possessing such a firearm represents a risk to others. Since it is an individual right that is being restricted on the basis of an assessment of threat to others, and since that threat can only be realized through the commission of a crime (the discharge of a firearm at others in a non-justifiable manner), does the legislation not constitute an accusation of criminal intent on the part of every individual impacted by the legislation? How is the restriction of a right, the utility of which can only be realized through the stopping of a criminal act, be possible without accusing those being restricted of criminal intent? And if it is an accusation of criminal intent, should not each person thus accused have the right to trial by jury and the right to face their accuser in court?

Bob owns an AR15. The legislature believes that Bob's ownership of the AR15 poses an unacceptable risk to others based on the criminal behavior of some other people. Therefore, the legislature aims to curtail or end ownership of an AR15 by Bob. How is this not, in effect, a charge of criminal intent by Bob? Why would Bob not have the right to face his accuser and to trial by jury?

The lack of precedent, a priori, is not enough to simply dismiss the entire question. I am not asserting that Bob has a right to face his accuser and right to a trial, rather I am interested in discussing pro/con the idea that stripping a person of their right and their property, or imposing new restrictions on their individual right, based on the utilitarian view that doing so will diminish deaths, can be justified without accusing the individual subject to restriction of criminal intent.

Discuss.

 

[AlexanderA]

Heller recognizes the principle that there are certain categories of weapons that are too dangerous for the public to own. (Machine guns, hand grenades, etc.) I don't necessarily agree with this, but that's where we are legally. This is why courts are upholding "assault weapon" bans.

This has nothing to do with the guilt or innocence of individual owners.

 

[bdickens]

They obviously have no understanding of the psychology of violence.

 

[DocRock]

Heller recognizes the principle that there are certain categories of weapons that are too dangerous for the public to own. (Machine guns, hand grenades, etc.) I don't necessarily agree with this, but that's where we are legally. This is why courts are upholding "assault weapon" bans.

This has nothing to do with the guilt or innocence of individual owners.

I understand that argument in relation to prospective buyers/owners of a certain type of firearm. In that case, a class, or features, of a firearm are being regulated, and perhaps the utilitarian grounds on which the regulation are justified bear a relationship to the restriction/regulation in question. "Continued access to such firearms may pose a risk to the public" sort of thing. While I don't agree with it, there is a well established precedent in law for that type of restriction.

But in cases where new regulations are adopted that strip an individual of an existing right or restrict that right (confiscation, feature delete requirements, registration) based on the claim that doing so will diminish the likelihood of harm to others, what the legislation is effectively doing is prescribing that an individual that owns such a firearm constitutes a risk to others. Since such a risk can only exist if the firearm owner commits a criminal act, the legislation is alleging criminal intent on the part of the individual owners of such firearms. The owner should therefore have the right to face his/her accuser and the right to trial.

It seems that restrictions, as allowed for under Heller, regulate firearms, while legislation that restricts the firearms ownership of those already in possession of such arms regulates on the basis of assumed intent or behavior by such owners, inasmuch as the alleged justification for the regulation implicitly accuses the individual firearms owner of criminal intent. If there is no implicit charge of criminal intent, there can be no justification on the grounds of public good for intended restrictions.

 

[Insignificant bill]

Heller recognizes the principle that there are certain categories of weapons that are too dangerous for the public to own. (Machine guns, hand grenades, etc.) I don't necessarily agree with this, but that's where we are legally. This is why courts are upholding "assault weapon" bans.

This has nothing to do with the guilt or innocence of individual owners.

Except the Supreme Court ruled that all weapons in common use are protected. ARs and aks are in common use.

 

[DocRock]

Except the Supreme Court ruled that all weapons in common use are protected. ARs and aks are in common use.

Quite right. So when someone who owns such a firearm is suddenly faced with confiscation or forcible alteration, based on the stated aim of diminishing the risk to others, is that not an implicit accusation of criminal intent by the owner of the firearm in question?

 

[AZAndy]

Quite right. So when someone who owns such a firearm is suddenly faced with confiscation or forcible alteration, based on the stated aim of diminishing the risk to others, is that not an implicit accusation of criminal intent by the owner of the firearm in question?

That is an interesting point, and I hadn't thought about it in that way before you mentioned it. About half of my enjoyment of firearms is an appreciation of how they work mechanically. My wife thinks I'm a little odd because I'll sometimes take the sideplate off a revolver to stare at the insides, or disassemble a functional semi-auto just to see how the parts interact. If I started doing the same thing with locks, and had sets of lockpicks to help in my understanding, would I then be a criminal due to my possession of "burglary tools?" Come to think of it, I do already own bolt cutters and pry-bars, so I'd better stop typing and call the police on myself.

 

[Frank Ettin]

....If I, as an individual, possess a right today and, at some time in the near future, a legislative body intends to strip me of my right, or restrict my individual right, on utilitarian grounds, there is usually some concept under the law that the alleged good has to merit the restriction envisaged....

...As I travel between states, I always have to research State gun laws to ensure compliance wherever I go. So the next state I’m exploring is New Jersey and while researching that state, I couldn’t help but feel very strongly that my 2nd Amendment rights are being infringed....

This will be a bit of a digression, but I'll interrupt this thread for a basic background lesson in how things work.

I. The Relationship Between State and Federal Law

• Our's is a federal system. States are sovereign, political entities. At the time of the founding of our nation each State or Commonwealth effectively ceded some measure of sovereignty to join with the others to become the United States. How much sovereignty each would cede was a central issue in hashing out the Constitution. Our nation would not have come into existence had the States/Commonwealths not retained an acceptable degree of sovereignty.
  
  
• A fundamental attribute of government is what's known as police power:

  The inherent authority of a government to impose restrictions on private rights for the sake of public welfare, order, and security.

  
  
• The police powers of States are broad and general.
  
  
• However, as our federal government has been established under the Constitution the federal government has no general police powers. Instead, its powers are specifically described in the Constitution. So, for example, Congress only has the power to pass laws consistent with the specific powers granted to it under Section 8 of Article I of the Constitution (subject to certain limitations set out in Section 9 of Article I).
  
  
• That arrangement is acknowledged by the Tenth Amendment to the United States Constitution:
  

  The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

  
  
• Deciding whether a law or other act of the federal government is within its power.
  
  
  1. The first issue will be whether a law or act of the federal government is within a power granted to it by the Constitution. So for example, the scope of the power of Congress under the Commerce Clause to pass laws regulating marijuana has been defined and confirmed under a number of Supreme Court decisions, most recently Gonzales v. Raich, 545 U.S. 1 (2005).
     
     
  2. A second issue will be whether a particular federal law impairs rights protected under the Bill of Rights. However, the courts have ruled that some regulation of rights protected by the Bill of Rights is permissible.
     
     
  3. The Founding Fathers assigned to the federal courts the authority to decide what the Constitution means and how it applies to matters in controversy (Constitution, Article III, Sections 1 and 2):

     Section 1.
     
     

     The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. ...​

     
     Section 2.
     
     

     The judicial power shall extend to all cases, in law and equity, arising under this Constitution,...​

  
  
• Deciding whether a law or other act of a state government is within its power.
  
  
  1. While the police powers of a State are general and broad, each State/Commonwealth has its own constitution. A State's constitution may circumscribe powers of the State government and provide explicit protection of some rights.
     
     
  2. Since in the United States each State or Commonwealth has its own government in the form of a representative democracy, the people in each have the opportunity to influence what laws are adopted and how they are implemented.
     
     
  3. While the Supreme Court ruled in 1833 that the Bill of Rights did not apply to the States (Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)), some years following the adoption of the Fourteenth Amendment the doctrine evolved of applying some, but not all, of the rights enumerated in the Bill of Rights to the States on a piecemeal basis, using the Due Process Clause of the Fourteenth Amendment. Thus those enumerated rights found applicable to the State have also become limiting factor on the exercise by States of their police power.
     
     
  4. To the extent that the question of the validity of a state law raises an issue under the United States Constitution, the meaning and application of the Constitution is finally a matter to be decided by the federal courts.
  
  
• What about when there's federal law and state law on the same subject?
  
  
  1. The whole area of choice of law (where the laws of multiple jurisdictions could be applicable) is a huge, complex, and pretty much non-intuitive subject.
     
     
  2. In general federal law will supercede state law. See The Constitution of the United States, Article VI, Clause 2:
     

     This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

     
     
  3. If the particular issue addressed by the state law is also addressed by the federal law, there's the question of whether the particular federal law was intended to "occupy the field", i. e., be the final word on the subject. In that case the federal law preempts the state law and applies instead of the state law.
     
     
  4. On the other hand, if a court decides that the federal law did not reflect an intent to occupy the field, in order to decide if federal law or state law applies a court will need to decide if the state law is consistent a federal policy concern or would, on the other hand, frustrate the federal policy furthered by the law. Or a federal law could be found to preempt state law if either expressly or by inference the federal law was intended to promote national uniformity with regard to a particular issue.
     
     
  5. Sometimes federal law will be explicit about how a conflict between federal law and state law is to be resolved. An example which comes immediately to mind involves the confidentiality of medical information regulation under HIPAA. Those regulations expressly provide that they don't supersede state laws to the extent providing greater protection of an individual's confidentiality interests. For another example, with regard to firearms regulation, federal law (the Gun Control Act of 1968) expressly doesn't preempt state laws. See 18 USC 927:

     No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.

     
     
  6. Sometimes there's no conflict between federal and state laws. If something is a crime under federal law but not state law, the crime would be prosecuted by the federal government, and visa versa. An act that is both a federal and state crime can be prosecuted by either, or both, the state and federal governments.

II. Regulation of Constitutionally Protected Rights.

• In District of Columbia v. Heller, 554 U. S. 570 (2008) the Supreme Court found that the Second Amendment protected an individual right; and it applied the Second Amendment to the States in McDonald v. Chicago, 561 U.S. 742 (2010). Therefore the citizens of every State are entitled to enjoy the RKBA to the extent required by the Constitution, and any regulation by the federal government or a State of the RKBA must be limited in a manner which will pass constitutional muster. The uncertainty here is that Second Amendment jurisprudence is at its formative stage, and therefore the constitutional limits to the regulation of the RKBA are not at present well defined.
  
  
• Even though the Second Amendment now (since Heller and McDonald) is a limit on federal and State power to regulate the RKBA, it's well settled law that under certain circumstance and to some extent a constitutionally protected right may be regulated. What those circumstance might be and the nature and extent of permissible regulation will be worked out by the courts. To do so, a court will consider, among other things, the nature of the right, the nature of the regulation, and the governmental purpose intended to be served.
  
  
• For the purposes of illustration, let's consider the regulation of rights protected by the First Amendment. While the First Amendment protects freedom of speech, assembly and religion against laws that abridge those rights we know there has been a history of certain regulation of speech, assembly and religion. A few examples are:
  
  
  1. Various laws (both state and federal) prohibiting such things as false advertising, fraud or misrepresentation. There are also state and federal laws requiring certain disclosures in connection with various transactions, which are valid and routinely enforced even though such laws do impinge on the freedom of speech.
     
     
  2. If you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true. These are also laws that abridge freedom of speech, and yet they are regularly enforced.
     
     
  3. Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official. See, for example:
     
     
     • Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), in which the Court, in upholding a Colorado law restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility, noted:
       

       ...We are likewise persuaded that the statute is "narrowly tailored" to serve those interests and that it leaves open ample alternative channels for communication. As we have emphasized on more than one occasion, when a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement...

       
       
       • Cf. McCullen v. Coakley (U. S. Supreme Court, No. 12–1168, 2014)
         
         
       • In McCullen the Court struck down a new Massachusetts "buffer zone" law. As noted in the opinion the Court had previously sustained a different sort of buffer zone law in Colorado, and nothing in McCullen casts any doubt on the continued validity of the Colorado law (McCullen, slip opinion at 2):

         ….The statute [the prior Massachusetts law] was modeled on a similar Colorado law that this Court had upheld in Hill v. Colorado, 530 U. S. 703 (2000). Relying on Hill, the United States Court of Appeals for the First Circuit sustained the Massachusetts statute against a First Amendment challenge. McGuire v. Reilly, 386 F. 3d 45 (2004) (McGuire II), cert. denied, 544 U. S. 974 (2005); McGuire v. Reilly, 260 F. 3d 36 (2001) (McGuire I).
         
         By 2007, some Massachusetts legislators and law enforcement officials had come to regard the 2000 statute as inadequate.....

         
         
       
       
     • Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir., 2006) in which the court upheld a Santa Monica ordinance requiring a permit for public assemblies. In fact in Santa Monica Food Not Bombs the court specifically acknowledges that the ordinance may burden the protected right, noting, at pg 1038:

       ...A narrowly-tailored permitting regulation need not be the least restrictive means of furthering a locality's asserted interests. The regulation may not,
       however, burden substantially more speech than necessary to achieve a scheme's important goals. See United States v. Baugh, 187 F.3d 1037, 1043 (9th Cir.1999). "[T]he requirement of narrow tailoring is satisfied `so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'" Ward, 491 U.S. at 799, 109 S.Ct. 2746 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985))...

     
     
  4. In the leading case on prior restraint (Near v. State of Minnesota, Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)) the Court in striking down a Minnesota statute allowing for the abatement, as a public nuisance, of malicious, scandalous and defamatory news analyzed in considerable detail and depth the scope and extent of the infringement of the freedom of press, the interests served and the availability of other and narrower remedies. And the Court then reached the conclusion that the statute went too far to be a permissible regulation.
     
     But nonetheless the Court also noted that certain interests, under certain circumstances would justify even prior restraint (Near, 283 U. S. 657, at 715 - 716):

     ...The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of peace are such a hindrance to its error that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' Schenck v. United States, 249 U. S. 47, 52, 39 S. Ct. 247, 249, 63 L. Ed. 470. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.6 On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not 'protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 139, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874.' Schenck v. United States, supra. These limitations are not applicable here. Nor are we now concerned with questions as to the extent of authority to prevent publications in order to protect private rights according to the principles governing the exercise of the jurisdiction of courts of equity...

     
     
  5. In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion (Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890)).
  
  
• So in fact the reality is that rights protected by the Constitution may nonetheless be subject to some limited regulation. The foregoing discussion of First Amendment jurisprudence serves the limited purpose of demonstrating that the courts do permit limited regulation of a constitutionally protected right. There are numerous examples of laws sustained by the courts which abridge freedom of speech, freedom of assembly, freedom of association, and freedom of religion. And First Amendment jurisprudence also offers some clues as to how such regulations will be evaluated by the courts.
  
  
• We can not expect, nor will we see, perfect correspondence between the regulation of rights protected by the First Amendment and the regulation of rights protected by the Second Amendment. First Amendment jurisprudence is quite mature at this point, but Second Amendment jurisprudence, in the wake of Heller, is in its infancy. However, we can expect some regulation of Second Amendment rights to be upheld by the courts.

III. Regulation of Rights Protected by the Second Amendment

With regard to any existing or possible future governmental actions which might be applied to limit, restrict or prohibit activities associated with the keeping and/or bearing of arms, here's essentially how things work:

1. Any governmental action limiting, restricting or prohibiting activities associated with the keeping and/or bearing of arms is subject to judicial challenge.
   
   
2. In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.
   
   
3. There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues.
   
   
4. The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.
   
   
5. Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.
   
   
6. Second Amendment jurisprudence is still in its infancy. Until Heller in 2008, it was still in doubt whether the Second Amendment would be found to describe an individual or collective right. Until McDonald in 2010, the law was that the Second Amendment did not apply to the States (United States v. Cruikshank, 92 U.S. 542 (1876)). So the scope and extent of permissible regulation of rights described by the Second Amendment is still unclear.
   
   
7. The bottom line is that Second Amendment jurisprudence will need to mature over time as these sorts of issues get litigated.