Firearms and the FIRST Amendment?

NPR and The New Yorker have recently reported that Sen. Ted Cruz (R-TX) and Sen. Dianne Feinstein (D-CA) exchanged words on the Senate floor about Sen. Feinstein’s recently proposed legislation to restrict firearms.[1]  The legislation, sparked by the horrific shooting incident at Sandy Hook Elementary School, would ban assault rifles and certain ammunition clips.

Sen. Cruz criticized the legislation by making an analogy between the Second and First Amendments, and asked Sen. Feinstein if she would “consider it constitutional for Congress to specify that the First Amendment shall apply only to the following books and shall not apply to the books that Congress has deemed outside the protection of the Bill of Rights.”

Sen. Feinstein’s initial response to the question and the coverage on broadcasts of the story on NPR focused on her defense of her understanding of the Constitution—as a senator of longstanding, she didn’t need a lesson on the Constitution.  Buried in her later remarks to Sen. Cruz’s remarks was the recognition that “there are different tests for different amendments.”  And I think this is a teachable moment.

To my hearing, Sen. Cruz’s comments reflected an understanding of constitutional rights that I think is also shared by the NRA and likely others as well—that rights articulated in the Bill of Rights are absolute, particularly as regards the Second Amendment.  But I think this understanding as a legal matter is incomplete.

As students of constitutional law are aware, no right is absolute.  Because individuals live in societies, reasonable regulations are imposed on individual behavior to prevent harmful actions by individuals who want to exercise their rights in unreasonable ways.  Is it okay for individual students to pray before a math test?  Yes.  Is it okay for the math teacher to lead those students in a state-mandated prayer before the math test?  Not so much.  Constitutional law is all about cases where the Court must balance the individual right in question against the state’s interest in reasonable regulation.  The question, of course, is what constitutes “reasonable” regulation.  Is a ban on assault weapons “reasonable,” or is it a serious restriction of an individual constitutional right that guarantees access to all weapons?  The answer to these questions rests on consideration of the importance and urgency of the government’s reason for the ban and the importance and nature of the individual’s right to bear arms.

Sen. Cruz’s remarks suggest that access to weapons is like access to books—implicit in his comments is that since access to books is not restricted under the First Amendment, access to firearms of all types shouldn’t be restricted either.  Yet, the Court has not provided an absolute protection for access to books; for example, school boards under Pico may remove books from a school library if they find that the books are “pervasively vulgar” or not suitable for educational purposes.[2]  This limitation would be consistent with the recognition of the importance of access to ideas as part of the educational function, balanced against the need for school boards to shape curricula for the development of young minds.  Can one draw an analogy to access to assault weapons, arguing that since the purpose of the right to bear arms is  self-protection, banning one type of weapon doesn’t significantly diminish that purpose, and thus, determining the government’s purpose in imposing this restriction would be crucial in determining the constitutionality of the legislation

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[1] Eyder Peralta, “’I Am Not a Sixth Grader’: Sens. Feinstein, Cruz Spar on the 2^nd Amendment,” The Two Way: Breaking News from NPR, 3/14/2013; http://www.npr.org/blogs/thetwo-way/2013/03/14/174332925/i-am-not-a-sixth-grader-sens-feinstein-cruz-spar-on-2nd-amendment (accessed 3/15/2013); Amy Davidson, “Feinstein and Cruz Fight About Guns,” The New Yorker, 3/14/2013; http://www.newyorker.com/online/blogs/closeread/2013/03/feinstein-and-cruz-fight-about-guns.html (accessed 3/15/2013).

[2] Board of Education v. Pico, 457 US 853, at 871.  Discussed in Claire Mullally, “Banned Books,” First Amendment Center, 9/13/03, http://www.firstamendmentcenter.org/banned-books; accessed 3/15/13.

Standards and Fundamental Freedoms

On February 12, 2013 Lyle Denniston wrote for the Constitution Center about the constitutional standard that the Court would apply to challenges to gun control laws in the wake of Heller (2009) and MacDonald (2010).[1]  Given the Court’s reluctance to take any more 2^nd Amendment cases, Lyle is most likely right—we do not yet know what constitutional standard the Court will apply.  Thus far, the Court has dealt with two of the most restrictive gun control laws in the country, so the standard for deciding less clear-cut has yet to be enunciated clearly.  However, as those of us who teach constitutional law we know what standard MacDonald implies is appropriate.  It is the lesson of Palko v. Connecticut (1937) and Duncan v. Louisiana (1968), and this lesson comes very early in any course focusing on civil rights or civil liberties.  By incorporating the 2^nd Amendment, the Court has already made a determination.

 

In Heller, the Court determined that the 2^nd Amendment right to bear arms is an individual right, and Scalia’s opinion suggests that this right is a limited one—the right to self-defense in the home.  In MacDonald, the Court incorporated this right to the states via the due process clause of the 14^th Amendment.  In doing so, the Court added this individual right to the ‘honor roll of rights’ that are “fundamental principles of liberty and justice which lie at the base of al our civil and political institutions[.]”[2]  In essence, the act of incorporation demands that the highest constitutional standard be applied to government attempts to constrain that right.  This is the lesson of Palko and why some parts of the Bill of Rights have yet to be incorporated.

 

Certainly, the Court can then make distinctions within the case law that provides more discretion for governmental action (valid time, place, or manner restrictions or the O’brien test come to mind), but these are deviations from the standard demanded by incorporation—strict scrutiny.  If a law is content based, if a law is directed toward the suppression of expression, free exercise of religion, or association, as an incorporated honor roll right, the 1^st Amendment gets strict scrutiny.  In US v. Jones (2012), the Court reminded us that, “the physical penetration standard and the reasonable expectation of privacy approach exist together,”[3] combining to provide a strong protection against intrusion of the incorporated 4^th Amendment.  It does not matter that the Court has also created exceptions to this standard (plain view, incident to arrest, hot pursuit); the standard for an incorporated right rests strongly on the side of the individual.

 

I expect, as Denniston notes, that the Court will provide some, if not a great deal of, wiggle room for the federal and state governments when dealing with the newly incorporated 2^nd Amendment.  However, the initial standard is already understood.

 

 

 

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[1] http://blog.constitutioncenter.org/2013/02/constitution-check-is-a-limit-on-the-number-of-bullets-a-gun-can-fire-unconstitutional/

[2] Palko v. Connecticut, page 77, second column CLCA: Rights, Liberties and Justice, 8^th edition.

[3] US v. Jones, page 475, second column CLCA: Rights, Liberties and Justice, 8^th edition.

Gun control on campus

Yesterday, the Oregon University System and the State Board of Higher Education (OUS) issued its new policy regarding guns on campus.  The new policy interprets an earlier Oregon Court of Appeals decision (Doe v. Medford School District 549C.  OUS states that the opinion “distinguished between attempts to ‘regulate’ firearms—which would likely be preempted by the Oregon Legislature—and internal policies regarding employment or property.”  Late in 2011, the Oregon Court of Appeals determined that Oregon law preempted OUS’s current ban on firearms.[1]

OUS’s new policy seeks to control only its property and those affiliated with the universities.  However, the policy defines affiliates broadly.  For example, anyone attending courses at an OUS institution, all business partners, any person attending any ticketed event, anyone “leasing, renting, or reserving” OUS property.  The next section notes that no one can “possess a firearm” in any OUS building, at any OUS sporting or performance venue, or at any OUS workplace.[2]  In this way, OUS is simply regulating its own property and employees.

Try as I might, I cannot think of any way an individual, besides those involved in military exercises or peace officers, that could carry a firearm on campus.  In this way, the regulation is equivalent to a full ban on OUS property.  Even if the distinction made by OUS passes muster in terms of pre-emption in Oregon courts, there is still the question of analysis under the 2^nd Amendment.  Laws restricting the ability to keep and bear arms must pass strict scrutiny due to the Court’s recognition of the fundamental nature of this right.  Can OUS overcome this test?[3]

The right to keep and bear arms was incorporated to the states in MacDonald v. City of Chicago, IL (2010).[4]  In District of Columbia v. Heller (2008), Justice Scalia noted that “…nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms…in sensitive places such as schools…”.  Perhaps I am mistaken, but my reading of the eminent justice’s language suggests it is not aimed at higher education.  Like many campuses, Oregon State University has a large campus encompassing green and recreational spaces, living quarters, research facilities, professional offices, libraries, food service venues, etc.  The breadth of the campus and the facilities therein hardly seem to be within the narrow exceptions to which Justice Scalia refers.  Therefore the question remains can OUS ban firearms from all its employees, affiliates, and contractors as well as ban firearms from all OUS buildings and ticketed events?  Would the interest in safety and security be compelling?  Is this a narrowly tailored policy?

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[1] Oregon Firearms Educational Foundation v. Board of Higher Education and Oregon University System (2011)

[2] There are exceptions for law enforcement and military personnel.

[3] My co-blogger, Liane Kosaki, notes that Wisconsin has legalized concealed carry, and gun possession cannot be banned on state owned grounds, including the University of Wisconsin, Madison.  The University can ban guns from university buildings if all buildings post signs.

[4] http://college.cqpress.com/sites/clca/cases/McDonaldvChicago.aspx?site=rights