Four Exceptions in Heller
Four Exceptions in Search of a Theory: District of Columbia v. Heller and
Judicial Ipse Dixit
Carlton F. W. Larson
Hastings Law Journal, Vol. 60, 2009
"Although we do not undertake an exhaustive historical analysis today of the
full
scope of the Second Amendment, nothing in our opinion should be taken to
cast
doubt upon longstanding prohibitions on the possession of firearms by felons
and
the mentally ill, or laws forbidding the carrying of firearms in sensitive
places
such as schools and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms." ---Heller
The Court offered no citations to support this statement, and its ad hoc,
patchy quality has been
readily apparent to commentators, who have speculated that it was compromise
language
designed to secure Justice Kennedy's vote. More cuttingly, Justice Breyer
suggested that these
exceptions amounted to little more than "judicial ipse dixit."
Although these exceptions are arguably dicta, they are dicta of the
strongest sort. The Court described these
exceptions as "presumptively lawful regulatory measures," and it is hard to
imagine the Court
invalidating them in a future case. For all practical purposes, these
issues have been decided,
and decided in favor of constitutionality.
1. felon disarmament laws significantly post-date both the Second Amendment
and
the Fourteenth Amendment. An originalist argument that sought to identify
1791 or 1868
analogues to felon disarmament laws would be quite difficult to make.
2. The strongest originalist argument for the exception for the mentally ill
rests on the
traditional ability of justices of peace to confine individuals with
dangerous mental impairments.
Specific eighteenth-century laws disarming the mentally ill, however, simply
do not exist.
3. the vague reference to "sensitive places" is not itself explicitly
grounded in eighteenth-
century sources, and the Court may intend to require more specific
justifications for each
particular sensitive place.
4. The commercial restrictions with which we are most familiar are almost
entirely twentieth-
century innovations.
44 Stat. 1059 (1927) (no handgun sale through mail)
48 Stat. 1236 (1934) (National Firearms Act)
52 Stat. 1250 (1938) (Federal Firearms Act)
82 Stat. 1213 (1968) (Gun Control Act of 1968)
See also HANDBOOK OF THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM
STATE LAWS AND PROCEEDINGS OF
THE FORTIETH ANNUAL CONFERENCE 563 (1930) {Uniform Fire Arms Act of 1930
prohibited delivery of a pistol to any person of "unsound
mind,"}
If originalism fails to provide a sufficient grounding for all of the Heller
exceptions,
perhaps they can be justified under some form of balancing test, that is, by
one of the typical
tests that the Court uses when evaluating other constitutional rights. This
Part explores whether
any one test can explain each of the exceptions. I conclude that the answer
is yes, but only under
a low standard of scrutiny. Specifically, I argue that it is doctrinally
impossible to conclude that
strict scrutiny governs Second Amendment claims, while also upholding the
four Heller
exceptions.
Felon
It is therefore implausible to claim that an across-the-board exclusion for
all felons from
this one particular constitutional right can be justified as narrowly
tailored under strict scrutiny.
The Court must be assuming, nonetheless, that the risk of inappropriate gun
usage by felons
outweighs any self-defense benefit to the felon. I entirely agree with this
policy judgment, but it
is important to note that it is a policy judgment nonetheless, not
explicitly grounded in anything
in the Second Amendment's text or history, at least as that text and history
is viewed by the
Heller majority.
The felon exception would, however, pass a reasonableness test. It would
probably also
pass intermediate scrutiny, since it is arguably substantially related to an
important state interest.
It may also pass an undue burden test, although this may be somewhat more
doubtful, given that
the law does exclude felons entirely from gun ownership.
Mentally Ill
this exception, if focused on a specific sub-set of the mentally ill,
would probably be upheld under strict scrutiny, it is by no means a
clear-cut case, and a broader
law would almost certainly fail. It is, however, a relatively easy case
under a reasonableness test,
and possibly an undue burden test or an intermediate scrutiny test.
Sensitive Places
lower courts will have to address, case by
case, whether particular locations are sufficiently "sensitive" to fall
within the exception.
One answer may be that Heller self-defense right simply has little
applicability outside
the home, which the Court claims lies at the heart of the Second Amendment.
This is not
entirely implausible, since Heller provides little guidance on the
geographic scope of the self-
defense right. But it's not especially consistent with Heller either.
First, if the right has little
applicability outside the home, there were would be no need for the Court to
single out
"sensitive" places, as opposed to places outside the home more generally.
Second, although it is
possible that most cases of self-defense arise in the home, this is far from
obvious, and Heller at
least hints at the value of self-defense outside the home.70
70 Heller, 128 S.Ct. at 2793 (citing James Wilson's reference to the natural
right of defense of "one's person or
house").
Commercial Regulation
The existence of this exception is yet further evidence that the relevant
test is not strict
scrutiny, as most commercial regulations, not only of guns, but of any
product, would probably
fail strict scrutiny. Such regulations, however, would pass a
reasonableness test, an undue
burden test, and probably intermediate scrutiny as well.[?]
[doesn't address the meaning of "commercial" as not including private sale
or probing the baseline beyond which one could fairly be considered a
commercial seller]
Pieced from
http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1347186_code366600.pdf?abstr
actid=1347186&mirid=1
_______________________________________________
To post, send message to [email protected]
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof
Please note that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
