Posted by Eugene Volokh:
The Second Amendment and People Convicted of Domestic Violence Misdemeanors:
http://volokh.com/archives/archive_2008_08_10-2008_08_16.shtml#1218730602
From
www.med.uscourts.gov/Opinions/Woodcock/2008/JAW_08112008_1-08cr19_USA_
V_BOOKER.pdf">U.S. v. Booker
(D. Me. Aug. 11) (Woodcock, J.):
Heller left unanswered a significant question: The level of
scrutiny the Court must apply to the restriction on Mr. Booker's
individual right to bear arms. As Heller notes, the "traditionally
expressed levels" are "strict scrutiny, intermediate scrutiny, and
rational basis." The Heller majority acknowledged that it did not
establish "a level of scrutiny for evaluating Second Amendment
restrictions," but it left some hints. First, the Heller majority
rejected Justice Breyer's "interest-balancing" approach, observing
that it knew "no other enumerated constitutional right whose core
protection has been subjected to a freestanding
'interest-balancing' approach." Second, the majority conceded that
the District of Columbia law would pass rational-basis scrutiny
and, since it ruled the District's complete ban on handguns
unconstitutional, the necessary implication is that the
rational-basis test is not applicable. The remaining options are
strict and intermediate scrutiny.
Strict scrutiny is generally reserved for statutory restrictions
that affect the exercise of certain "fundamental right[s]." The
individual right to bear arms might well be a fundamental right,
the restriction of which requires strict scrutiny. This conclusion
is supported by the placement of Second Amendment within the Bill
of Rights alongside this Country's most precious freedoms. However,
as Justice Breyer points out, Heller expressly approves some
statutory restrictions -- the types of people who may exercise this
freedom; the places where this freedom may be exercised; and, the
ability to buy and sell the objects of this freedom -- "whose
constitutionality under a strict scrutiny standard would be far
from clear." "Intermediate scrutiny is used, for discrimination
based on gender and for discrimination against nonmarital
children." Heller itself concedes that it does not "clarify the
entire field." It consciously left the appropriate level of
scrutiny for another day.
Rather than tackle this complex and unanswered question, the Court
starts from a different place. Heller teaches that even though the
Second Amendment guarantees an individual right to bear arms, it is
"not unlimited." Heller states that "nothing in our opinion should
be taken to cast doubt on 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." A useful approach
is to ask whether a statutory prohibition against the possession of
firearms by felons and the mentally ill is similar enough to the
statutory prohibition against the possession of firearms by persons
convicted of the misdemeanor crime of domestic violence to justify
its inclusion in the list of "longstanding prohibitions" that
survive Second Amendment scrutiny.
The Court concludes it does. To reach this conclusion, the Court
starts by comparing the constitutionally-sanctioned prohibition
against firearm possession by felons with the prohibition against
persons convicted of misdemeanor crimes of domestic violence. A
person can, of course, be convicted of a felony which had nothing
to do with physical violence and which would not necessarily
predict future misuse of a firearm. Nevertheless, the law forbids
any convicted felon, regardless of the nature of the felony, from
possessing firearms and Heller constitutionally sanctioned this
broad prohibition. [Footnote: The same point is generally
applicable to the mentally ill....]
By contrast, the predicate offense under which Mr. Booker was
convicted is defined in 18 U.S.C. � 922(g)(9) as requiring "the use
or attempted use of physical force" by someone who is a spouse,
parent, or guardian of the victim or someone in a position similar
to a spouse, parent, or guardian of the victim. [Footnote: Mr.
Booker emphasizes that an individual may be convicted of a
misdemeanor crime of domestic violence in Maine by reckless
behavior; he argues that there is not a significant enough
government interest to deprive him of his Second Amendment right if
he acted only recklessly. However, the felony convictions to which
Mr. Booker's predicate offence is being compared run the gamut of
the mens rea spectrum, and a domestic violence offender's mens rea
does not impact the Court's analysis under Heller.] If anything, as
a predictor of firearm misuse, the definitional net cast by �
922(g)(9) is tighter than the net cast by � 922(g)(1). Turning to
the governmental interest, the manifest need to protect the victims
of domestic violence and to keep guns from the hands of the people
who perpetrate such acts is well-documented and requires no further
elaboration.
Based on the absence of a meaningful distinction between felons and
persons convicted of crimes of domestic violence as predictors of
firearm violence, the critical nature of the governmental interest,
and the definitional tailoring of the statute, the Court concludes
that persons who have been convicted of a misdemeanor crime of
domestic violence must be added to the list of "felons and the
mentally ill" against whom the "longstanding prohibitions on the
possession of firearms" survive Second Amendment scrutiny.
Not an unanswerable argument, of course, but at least a plausible and
relatively detailed attempt to confront the underlying question,
unlike some of the other early post-Heller district court decisions
(see, for instance, [1]here).
References
1. http://volokh.com/archives/archive_2008_08_10-2008_08_16.shtml#1218499278
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
