Is a pro-Emerson 2A decision by SCOTUS better than no decision at all?

[Bartholomew Roberts]

Suppose SCOTUS were to adopt the view that the Second Amendment protects an individual right to bear arms; but that this right is subject to reasonable restrictions and they will use a rational basis test to determine whether a restriction is reasonable.

A rational basis test is one of the easiest tests to pass and offers very little in the way of protection. Basically, if there is any rational basis at all behind the decision - even if it isn't supported by the evidence - that is enough to justify the law. Further, Congress doesn't even have to supply a rational basis when it passes the law. The Court can invent one when they review the law, even if Congress was absolutely silent on the issue.

In a practical sense, this standard would overturn very, very few existing federal laws. The 1994 AWB survived a rational basis test at the lower court levels and McCarthy's H.R. 1022 stands a better chance that the earlier ban of surviving the test. The only type of legislation that would stand some chance of being overturned by this ruling is truly ridiculous legislation like "People wearing red hats may only possess firearms for hunting purposes; but people wearing no hats may only possess firearms for target-shooting purposes."

You could make a good argument that this type of standard might even advance the goals of gun control since it lulls people by telling them they have an individual right to bear arms; but then places an absolutely toothless standard to protect that right.

On the other hand, the current protection offered by the collective rights argument, which is the majority view in most circuits, is that you have zero protection. The 2A isn't even about you so you can't use it for anything. As low as the standard for rational basis is, it does acknowledge that somewhere you do have an individual right that cannot be infringed, even if that right might only be to a single-shot .22LR long-gun.

I can't decide how I feel about this. On the one hand, I think an individual rights decision with such a low standard might actually be harmful to gun rights. On the other hand, I look at the history of civil rights in the United States and see horrible decisions like Plessy v. Ferguson (separate but equal) and think that even though that was a horrible test that offered blacks almost nothing in the way of protection, it was a tiny step away from the past inequities that may have ultimately paved the way for Brown v. Board of Education. Of course Brown v. Board of Education came 60 years after Plessy, so you could argue it kept a lid on faster social change as well.

So I thought I would throw it out here to see what you all thought.

 

[LAR-15]

Would not such a decision make total gun confiscation illegal though?

There could be no total gun bans.

 

[ccarnel]

But they could ban everything except something like a single shot rifle

 

[Nightcrawler]

They can do that now. I think at least having the government admit that there is an individual right to keep and bear arms would be a step in the right direction. I'd worry that a too watered down SC decision would shoot us in the foot, though.

 

[TexasRifleman]

I'd worry that a too watered down SC decision would shoot us in the foot, though.

I'm more worried that our great great grandchildren will be dead before you EVER see SCOTUS deal directly with a yes/no 2A case......

 

[Bartholomew Roberts]

Whether they could ban something or not would still depend on our power in Congress mainly (as it does now). This just establishes what level of protection we receive if Congress DID ban something. Right now, that level of protection is a ZERO for everybody except the 5th Circuit - and in the 5th Circuit the standard is the same one being discussed here.

So it would be a gain (albeit a pretty small one) for everybody else and it would strengthen the 5th Circuit (where the decision isn't on solid ground since it was only dicta by a three-judge panel and not an "en banc" court establishing binding precedent).

 

[DKSuddeth]

an SC ruling that is equal to the emerson ruling would only do one thing for us, have us 'asking' permission to carry a firearm with their reasonable restrictions. The rational basis test is nothing more than 'do we approve of this person doing this act'.

 

[Mulliga]

I thought rational basis review was the default level of judicial review for EPC challenges when no fundamental rights or suspect classes are involved? Isn't it true that any law, no matter what distinction it makes, must survive this level of review?

Anyway, I'd prefer we get a Lawrence v. Texas type decision that recognizes something, no matter how small, than a compromised "reasonable restrictions" Emerson-style decision.

 

[Outlaw Man]

We'd be much better off if we could elect a Congress that follows the Constitution and will impeach and remove any judges who don't recognize the Second Amendment as an unrestricted individual right.


I think either scenario is equally as (un)likely to happen, though.

 

[nobody_special]

How about a "rational basis with scrutiny" test? Somewhat less than "strict scrutiny," and of course the level of scrutiny would have to be defined.

Perhaps a "rational basis" test for general firearms, but a "strict scrutiny" test for ones particularly suitable as personal militia arms. Or something like that...

 

[Bartholomew Roberts]

Well, you could probably get a test stricter than rational basis if you are willing to spend the next 30 years changing the underlying culture so that it was better educated on the issue (and if you thought that you would win that educational effort).

However, if you want a decision any sooner than that, you have a problem in that your Justices are Scalia, Stevens, Alito, Roberts, Thomas, Ginsburg, Kennedy, Souter, and Ginsburg. You need four of those Justices to get cert and five of those justices to get a positive decision. Which ones will sign on to a standard stricter than rational basis?

Even assuming that Stevens (who supports the collective rights view) retires from the bench soon and you get a new pro-2A replacement, a lot of the conservative Justices are, in fact, conservative. This means they are unlikely to overturn a lot of existing federal firearms law.

So is it better to have no decision at all rather than have an individual rights decision that is nigh toothless?

 

[Henry Bowman]

So is it better to have no decision at all rather than have an individual rights decision that is nigh toothless?

Unfortunately, probably so.

 

[F4GIB]

It would better to have a collective right decision (what most politicians now believe anyway) that a rational basis individual right decision. And any decision is better than the status quo. Remember that Sen. Chuck Schumer can claim to support the Second Amendment (just like Rep. Jim Ramstad of Minnesota).

With no Second Amendment to hide behind, like Gays in 1970, there would be no place to hide. Those 70,000,000 gun owners would have to turn to ACTIVE POLITICS for safety. If loathed Gays could do it, we could.

Once a political powerhouse both the laws and the courts can be brought into line. Remember the Gay marriage decision?

The ability to dream about the Second Amendment as "meaningful" is what lets Jim Zumbo and David Petzal sell out EBR's to save their hobby guns.

 

[Bartholomew Roberts]

Well, maybe I am assuming too much. The 5th Circuit panel in Emerson was careful not to define the scope of whatever Second Amendment right there was beyond saying it was subject to reasonable restrictions and that the restrictions here met that test.

Anyone want to argue that they applied a stricter test than rational basis?

 

[Mulliga]

It could be argued they used a "searching" rational basis test.

270 F.3d 261:

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.

"Narrowly tailored" language would probably invalidate Hawaii-style near-total prohibitions.

270 F.3d 265:

we also conclude that the predicate order in question here is sufficient, albeit likely minimally so, to support the deprivation, while it remains in effect, of the defendant's Second Amendment rights.

The facts are a bit hazy here, but it seemed like the Court of Appeals was at least sorta concerned about the whole "uncontested boilerplate form" fracas.

 

[nobody_special]

Emerson really avoided the issue. They went ahead and allowed the RKBA to be removed via procedural means and without a demonstration of cause (though they did complain a little in the decision). That sounds like a "rational basis" test to me, and it obviously is a much lower standard than "strict scrutiny."

 

[Lupinus]

it would depend very heavily on the exact wording of the decision.

To broad would give them all the reason in the world to say "Well, this is totaly lawful because it is reasonable..." That is the problem with something generaly described as reasonable, what is reasonable to the BATFE is obviously not going to be reasonable to many of us. It opens the flood gate to them to do most anything they want so long as they can convince someone it was reasonable.

On the bright side it establishes that it is indeed an indivdual right so total ban is no longer possible. However, it does open the flood gates to ban and restrict so long as they can deam it reasonable.

 

[Bartholomew Roberts]

If you made a "shall not be infringed" post, I deleted it. I'm trying to explore the fairly narrow topic I outlined in the first post. If you don't like either of the options I outlined above, then please just keep your opinions to yourself or start a thread where they are relevant. Thanks.

 

[ctdonath]

My take from Emerson was that the restriction in question was allowable only because it was SPECIFIC: it was applied (however weakly or tangentially) to Mr. Emerson as the result of a particular court ruling applied only to Mr. Emerson under particular circumstances dealt with by a an actual court case where he had opportunity to respond and refute that which would be applied to him. (The 5th Circuit acknowledged this was an extreme stretch under the circumstances, but did clarify the line as a line.)

This is very different from a broad, general prohibition applied to all unilaterally and anonymously without court involvement.

For SCOTUS to establish the 2nd upon Emerson is tolerable in that the right may only be restricted via specific court case where the one at risk of losing the right has an opportunity to challenge the infringement.

 

[ConstitutionCowboy]

A rational basis test is one of the easiest tests to pass and offers very little in the way of protection. Basically, if there is any rational basis at all behind the decision - even if it isn't supported by the evidence - that is enough to justify the law. Further, Congress doesn't even have to supply a rational basis when it passes the law. The Court can invent one when they review the law, even if Congress was absolutely silent on the issue.

Infringement aside, this argument assumes that the SCOTUS has been granted power to legislate what would amount to said rational basis. This is no different than what the SCOTUS did in reaching into the ether and coming up with the reasonableness-to-a-militia use of a sawed-off shotgun. Therefore, such a ruling by the SCOTUS along these lines would do us no good.

The best the Court could do constitutionally would be to strike down the law and await clarification on such issues from Congress in a new law. And then, undeniably, the new law would be subject to the scrutiny of the Constitution.

Woody

Look at your rights and freedoms as what would be required to survive and be free as if there were no government. Governments come and go, but your rights live on. If you wish to survive government, you must protect with jealous resolve all the powers that come with your rights - especially with the Right to Keep and Bear Arms. Without the power of those arms, you will perish with that government - or at its hand. B.E. Wood

 

[luzyfuerza]

It's interesting to review what the Rhenquist court did to strengthen the second amendment without ever addressing the issue that you raise in this thread. The two examples that I have in mind are the ruling striking down Congress' action of outlawing firearms within a certain distance of a school, and that of striking down Congress' establishment of a national firearms purchaser clearinghouse, with costs to be borne by the states.

The first SCOTUS ruling mentioned above created the first limitations on Congress' commerce clause powers that I know of. Congress has relied on the power granted to it under the commerce clause to limit firearms sales, transfers, etc., in the past. Limiting commerce clause-derived power is a step in the right direction for the second amendment, although it is unclear whether future courts will further restrict these powers in the future.

The second ruling was one of several that the Rhenquist court used to clarify the constitution's definitions of the proper relationship between the federal and state governments. This ruling limited the federal government's ability to demand that states behave in certain ways. It relies at least in part on the constitutional principle that powers not specifically reserved to the federal government belong to the states, or to the people.

Both of these rulings limit Congress' ability to chip away indirectly at Second Amendment protections. Rhenquist was a pretty bright guy; did he (and the other members of the court who agreed with him) choose to make these statements in firearms-related cases by accident? We may never know, but I would guess not.

 

[illspirit]

I think a rational basis decision would be a good start. If SCOTUS ruled that 2A is an individual right with some restrictions, that would practically require them to follow through and address any and all rational basis challenges that make their way up the judiciary food chain. As it is, they've had their fingers in their ears for 70 years pretending not to notice.

As for the '94 AWB surviving on rational basis, would the appellate courts have been able to blow it off so easily if there was a SCOTUS ruling saying 2A is an individual right? And if this flood gate was opened, I'm sure someone, somewhere would be able to prove how irrational things like AWBs really are. If we can get at least one Circuit to admit and rule on this fact, would it not have to be granted cert to be settled once and for all?

Then, even if worse comes to worse, justice fails, and SCOTUS does uphold some type of gun bans, well, at least then we would know where we stand...

 

[nobody_special]

Illspirit, I'm not sure but I think a 'rational basis' doesn't actually have to be all that rational; all that is necessary is that some sort of justification can be made up for a restriction. The justification must have some logic to it, but I expect you would see many rather thin justifications upheld.

 

[Bartholomew Roberts]

Thanks to everyone who contributed so far. This thread is really making me aware of my ignorance of key aspects of Emerson so I think I am going to go back and read all of the opinions again all the way from district court to denial of cert.

However, I think Mulliga may be on to something. I wasn't aware of it but Ieyasu highlighted this section of the government's brief asking the Supreme Court to deny cert to Emerson:

"Petitioner argues (Pet. 14-16) that the court of appeals erred in failing to apply strict scrutiny in ruling on his Second Amendment challenge to Section 922(g)(8). Contrary to petitioner’s suggestion (Pet. 15), however, the court of appeals did not purport to apply a relaxed standard of review. Rather, the court stated that, “as historically understood in this country,” an individual’s right to possess a firearmis subject to “limited, narrowly tailored specific exceptions or restrictions.” Pet. App. 136. Where an injunction against violent conduct reflects the issuing court’s determination that an individual poses “a real threat or danger of injury to” another, id. at 138, the court of appeals “conclude[d] that the nexus between firearm possession by the party so enjoined and the threat of lawless violence, is sufficient, though likely barely so, to support the deprivation, while the order remains in effect, of the enjoined party’s Second Amendment right to keep and bear arms,” id. at 143."

Essentially, the government is arguing here that the 5th Circuit DID apply strict scrutiny which would seem to suggest that at the very least, you have an argument that the DoJ has already recognized Emerson as applying a standard that is far above rational basis.

Another helpful thing that Ieyasu pointed out is that the majority opinion (Garwood and DeMoss) does not contain the anything about "reasonable restrictions." That language comes from Parker's so-called "concurrence" which seems to be a concurrence only in the result and was written with the primary objective of undermining the 2A language in the main opinion.

The language used in the main opinion is that cited by Mulliga earlier:

"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."

So restrictions must be limited, narrowly tailored, specific exceptions that are reasonable and not inconsistent with a right to keep and bear PRIVATE arms as historically understood in this country. The wording seems to support a standard higher then rational basis, though the application since that ruling doesn't seem to back up the words. Still, that would be a test I would be happy to see the Supreme Court endorse, because while it might be applied on a near rational basis now. It can definitely be expanded to a stricter standard without overturning precedent.

 

[Bartholomew Roberts]

Anybody taken a look at the 5th Circuit case of United States v. Herrera (both the three-judge panel and the subsequent en-banc review)?

In the dissent of the en banc, Judge DeMoss makes an argument that Emerson is both binding precedent and a strict standard. He argues that the phrase "unlawful possesion of a controlled substance" is an unconstitutionally vague basis to deny someone their Second Amendment rights. The majority doesn't disagree with this or even address it; but merely overturns the ruling on the grounds that the defendant failed to make the specific argument during his trial and cannot bring it up now.