[Randy Barnett, June 27, 2008 at 5:40am] Trackbacks
So What Gun Regulations Are Reasonable? Perhaps
the question most commonly asked by reporters about yesterday's decision in Heller, is how it will affect the constitutionality of other gun laws. I believe Justice Scalia signaled that
regulations short of a ban should be scrutinized the way we do "time, place, and manner" regulations of speech when he equated the Second Amendment with the First: "There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not."
An article by Gary Barnett, a rising 3L at Georgetown Law, just appeared in the Georgetown Journal of Law and Public Policy contending that the doctrines construing the
individual rights in the First Amendment should be applied analogously to the rights protected Second Amendment. (This is what he calls the Common Law Constructive Method.) He provides a very useful survey of First Amendment doctrines and then considers how they might need to be altered or refined to work in the Second Amendment context.
His article, The Reasonable Regulation of the Right to Keep and Bear Arms can be downloaded from SSRN here. Here is the abstract:
The Supreme Court has recently held in District of Columbia v. Heller that the Second Amendment protects an individual right to keep and bear arms. That decision, however, is only the beginning of the inquiry. Individual rights, via the police power, are subject to reasonable regulation. The difficult question remaining is whether a particular regulation is unreasonable, unduly infringing on an individual's right to keep and bear arms, and is therefore unconstitutional. This note proposes a workable analytic approach to addressing this question. Guided by the Common Law Constructive Method, this note takes First Amendment time, place, and manner doctrine and transposes it onto the Second Amendment.
Here is a taste of his analysis (which I have edited to omit references to First Amendment cases discussed elsewhere in the article):
The Common Law method of construction teaches an important lesson about the reasonable regulation of the right to keep and bear arms. If the very same degree of scrutiny that is applied to restrictions on speech in a pubic forum were applied to restrictions on guns in a public forum, far more gun laws would be upheld as constitutional than laws restricting speech. This is because, with gun laws, the government can almost always provide a safety rationale for enacting a particular regulation. In other words, any gun restriction can be justified on the grounds of safety. This effectively eliminates the half of the test requiring a significant government interest. In contrast, in First Amendment law, absent a clear and present danger, speech rarely threatens health and safety in the same way. This inability of the government to have an ever-present safety rationale creates an inherent protection for speech within First Amendment law. In other words, because it is more difficult for the government to articulate a significant interest, it can enact fewer restrictions. This lack of protection in the Second Amendment law should be supplemented by requiring a law be the least intrusive means to achieving the government’s stated end. . . .
Determining whether a regulation is narrowly tailored . . . is a difficult task. This is where the wisdom embedded within First Amendment law is quite useful. The Supreme Court . . . has already promulgated a feasible approach: if a government restriction results in a substantially adverse effect on the non-target group from effectively asserting their Second Amendment rights, then that restriction would be unreasonable. For example, a trigger lock requirement on a handgun, intended to combat the social harm of accidental firearm use, would most likely have a deleterious effect on an individual’s ability to protect herself effectively against an armed robber. The non-target group, those wanting to exercise their right of self defense, would, for all intents and purposes, be prohibited from effectively acting in self-defense, a constitutionally protected end. Such a requirement would not be narrowly tailored . . . and therefore would be unconstitutional. . . .
The second requirement for a government restriction to not infringe an individual’s right to keep and bear arms, and thus be reasonable, mirrors the third prong of the First Amendment analysis—that any restriction leave open ample alternative channels of communication. This requirement is designed to safeguard against the encroachment on the protected ends of the First Amendment. To ensure that this requirement is satisfied, a law must allow for the continued accomplishment of the constitutionally protected end. The same is true of the Second Amendment. Although it does not expressly protect any specific means, it does protect specific ends. Therefore, as in First Amendment law, a restriction must leave ample means of accomplishing the ends protected by the Second Amendment.
This article is a useful starting point for anyone who wants to think seriously about how to distinguish reasonable from unreasonable gun laws.
