Posted by Eugene Volokh:
The Right To Keep and Bear Arms in Self-Defense, and Taxes, Fees, or
Regulations That Indirectly Raise Gun or Ammunition Prices:
http://volokh.com/archives/archive_2009_04_05-2009_04_11.shtml#1239283992
In this post and the two that surround it on this chain, I continue
blogging excerpts from my [1]Implementing the Right To Keep and Bear
Arms for Self-Defense: An Analytical Framework and a Research Agenda,
which is forthcoming in a few months from the UCLA Law Review. But I
particularly focus on analogies between the right to keep and bear
arms and other constitutional rights, when it comes to waiting
periods, taxes and fees, and government tracking regulations. Such
analogies are often drawn, but usually between the right to bear arms
and just one other right. I try to avoid cherry-picking my favorite
rights to compare with, and instead look to how courts have dealt with
similar questions as to a wide range of rights, including free speech,
voting, abortion, and property rights.
The article is quite long, so I thought I�d just blog some excerpts;
if you�re interested in the broader framework the article discusses (a
framework that separates the inquiry into the scope of the right based
on its text, original meaning, and history, the burden that the
restriction imposes on the right, the reducing-danger arguments for
the restriction, and the government�s proprietary role [if that�s
present]), please follow the link. Also, please remember: Not all
unwise laws are unconstitutional laws, even where constitutional
rights are potentially involved.
* * *
Taxes on guns and ammunition, or gun controls that raise the price of
guns and ammunition, would be substantial burdens if they materially
raised the cost of armed self-defense. A $600 tax proposed by Cook,
Ludwig & Samaha [in another article in the same symposium for which my
article was written -EV], justified by an assertion that �keeping a
handgun in the home is associated with at least $600 per year in
externalities,� is one such example. �The poorly financed
[self-defense] of little people,� like their �poorly financed causes,�
deserves constitutional protection as much as the self-defense of
those who can afford technologically sophisticated new devices or high
new taxes. (See Martin v. City of Struthers, 319 U.S. 141, 146 (1943)
(striking down ban on door-to-door solicitation, partly on the grounds
that �[d]oor to door distribution of circulars is essential to the
poorly financed causes of little people�); see also City of Ladue v.
Gilleo, 512 U.S. 43, 56 (1994) (striking down ban on display of signs
at one�s home, partly on the grounds that �[r]esidential signs are an
unusually cheap and convenient form of communication. Especially for
persons of modest means or limited mobility, a yard or window sign may
have no practical substitute.�).) This is true whether the tax or
expensive control is imposed on gun owners directly, or on gun sellers
or manufacturers, just as a restriction on abortion can be a
substantial burden even if it�s imposed on doctors and not on the
women who are getting the abortions.
High gun taxes should remain presumptively impermissible even if they
are based on some (doubtless controversially calculated) estimate of
the public costs imposed by the average handgun: The average takes
into account both the very low cost stemming from guns that are always
properly used by their owners, and the very high cost stemming from
guns that are used in crime. The law-abiding owners thus are not just
being required to �internalize the full social costs of their
choices,� even if you take into account as a �cost� the possibility
that any gun will be stolen by a criminal. They are also being
required to internalize the social costs of choices made by criminal
users of other guns -- much as if, for instance, all speakers were
charged a tax that would be used to compensate those libeled by a
small subset of speakers.
Nonetheless, some modest taxes might not amount to substantial
burdens, as a review of taxes and fees on other constitutional rights
illustrates. Taxes based on the content of speech are
unconstitutional, regardless of their magnitude. But this is a special
case of the principle that discrimination based on certain kinds of
characteristics -- race, sex, religiosity, or the content or viewpoint
of speech -- is unconstitutional. Setting aside these special areas of
constitutionally forbidden discrimination, and setting aside poll
taxes, which were constitutional until the Twenty-Fourth Amendment
forbade them, other kinds of taxes, fees, and indirect costs imposed
on the exercise of constitutional rights are often permissible.
The government may require modest content-neutral fees for
demonstration permits or charitable fundraising permits, at least if
the fees are tailored to defraying the costs of administering
constitutionally permissible regulatory regimes. The same is true for
marriage license fees and filing fees for political candidates (though
the Court has held that the right to run for office is protected by
the First Amendment). The same is doubtless true of costs involved in
getting permits to build on your own property, a right protected by
the Takings Clause.
Likewise, regulations of the right to abortion are not rendered
unconstitutional simply because they increase the cost of an abortion.
The Court so held when upholding a 24-hour waiting period even though
it required some women in states with very few abortion providers to
stay in a hotel overnight or miss a day of work, and when upholding
viability testing requirements that might have marginally increased
the cost of an abortion. So long as the extra costs don�t amount to
�substantial obstacle[s]� to a woman�s getting an abortion, they are
constitutional.
At the same time, when a cost is high enough to impose a substantial
obstacle to the exercise of a right for a considerable number of
people, it is unconstitutional. This is likely also true when a cost
goes materially beyond the cost of administering the otherwise
permissible regulatory scheme, as several federal circuit court cases
hold and some U.S. Supreme Court cases suggest. And if a law
substantially burdens rightholders who are relatively poor, an
exemption would likely be constitutionally required, as it has been
with regard to permit fees for speakers and candidates.
I acknowledge that any such regime necessarily creates linedrawing
problems and poses the danger that a genuinely substantial burden will
be missed by judges who are deciding how much is too much. But, first,
there is ample precedent for such tolerance for modest fees in other
constitutional rights contexts, and it seems neither likely nor
normatively appealing for the courts to conclude that the right to
bear arms is more protected than these other rights. Second, the
caselaw from those other areas can provide guideposts for the
linedrawing process. And third, the caselaw from those other areas (as
well as the general logic of the substantial burden threshold) can
provide justification for a constitutional requirement that poor
applicants be exempted from fees -- say, fees that dramatically
increase the cost of a new gun, or that are required for periodic
reregistration of an old gun -- that are substantial for them even if
relatively minor for others.
References
1. http://www.law.ucla.edu/volokh/2am.pdf
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
