Thursday, July 07, 2011
A 7th circuit decision granting a temporary injunction against gun ranges in chicago shows that the 2nd amendment is starting to get taken seriously by the lower courts. A standard of review is beginning to emerge from these cases.
Courts will look to whether the activity in question is within the core rights protected by the amendment,and the degree to which regulation burdens it. Substantial or severe burdens on the core rights will get some form of heightened scrutiny.
Analogies are made to election law cases, of all things, so what is to me the familar framework of Anderson, Takushi, and Norman v Reed, will have a new context.
I guess i'll cross-post this to my election law blog as well. (was first posted at vark.blogspot.com.)
Buckley v Valeo exacting scrutiny is mentioned, as well as Crawford v Marion county, which extended the Anderson test to election law cases generally.
The decision cites a number of well known law bloggers, including Eugene Volokh, Instapundit, Randy Barnett, David Koppel.
I suspect that a short comment on this topic could get published somewhere.
I probably won't get around to writing it myself.
update: here are a few passages from the opinion.
Borrowing from the Court’s First Amendment
doctrine, the rigor of this judicial review will depend on
how close the law comes to the core of the Second Amendment
right and the severity of the law’s burden on the right. slip op. at 33.
Both Heller and McDonald suggest that broadly prohibitory
laws restricting the core Second Amendment
right—like the handgun bans at issue in those cases, which
prohibited handgun possession even in the home—are
categorically unconstitutional. 33.
First, we ask whether the challenged
law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee. . . . If it does
not, our inquiry is complete. If it does, we evaluate the law
under some form of means‐end scrutiny. 34-35.
Both Heller
and McDonald suggest that First Amendment analogues are
more appropriate... and on the strength of that
suggestion, we and other circuits have already begun to
adapt First Amendment doctrine to the Second Amendment
context. 41
Likewise, “[l]aws that burden political
speech are subject to strict scrutiny.” Citizens United v. Fed.
Election Comm’n,
On the other hand, “time, place, and
manner” regulations on speech need only be “reasonable”
and “justified without reference to the content of the
regulated speech.”
In election‐law cases, regulations affecting the
expressive association rights of voters, candidates, and
parties are subject to a fluctuating standard of review
that varies with the severity of the burden on the right; laws
imposing severe burdens get strict scrutiny, while more
modest regulatory measures need only be reasonable,
politically neutral, and justified by an important
governmental interest. See Crawford v. Marion Cnty.
Election Bd., 553 U.S. 181, 190‐91 (2008); Wash. State Grange,
552 U.S. at 451‐52; Burdick v. Takushi, 504 U.S. 428, 434
(1992); Lee v. Keith, 463 F.3d 763, 768 (7th Cir. 2006). “First
Amendment challenges to disclosure requirements in
the electoral context”—for example, laws compelling
the disclosure of the names of petition signers—are reviewed
“under what has been termed ‘exacting
scrutiny.’ ” Doe v. Reed, 130 S. Ct. 2811, 2818 (2010). This
standard of review requires “a substantial relation between
the disclosure requirement and a sufficiently important
governmental interest,” and “the strength of
the governmental interest must reflect the seriousness of the
actual burden on First Amendment rights.”
My thought is that not only will election law balancing tests be used to help establish a workable standard of review in gun cases, which currently operate in a state of indeterminacy, because Heller and McDonald are new and did not set out a standard, but also gun cases may at some point be used in election cases, which also operate in a state of indeterminacy.
The Burdick-Anderson-Norman framework lets us treat minor violations lightly, apply balancing to more serious questions and strict scrutiny to severe burdens.
But we have no test to know when a burden is severe,so the Court has upheld poll taxes (Crawford), censorship of political speech (Citizens United disclaimers), and a ban on political association by parties (Twin Cities) although each of these severely burdens political participation.
In Heller McDonald and Ezell, Alan Gura has won victories and established a meaningful Second Amendment. But there will be losses to follow, as Second Amendment rights are infringed by "reasonable regulation." Those cases in turn may be cited in future briefs by the "reform" crowd seeking to further burden or censor political speech and association. The emerging connection between First And Second Amendment jurisprudence bears watching, even by people who are solely election lawyers.
Courts will look to whether the activity in question is within the core rights protected by the amendment,and the degree to which regulation burdens it. Substantial or severe burdens on the core rights will get some form of heightened scrutiny.
Analogies are made to election law cases, of all things, so what is to me the familar framework of Anderson, Takushi, and Norman v Reed, will have a new context.
I guess i'll cross-post this to my election law blog as well. (was first posted at vark.blogspot.com.)
Buckley v Valeo exacting scrutiny is mentioned, as well as Crawford v Marion county, which extended the Anderson test to election law cases generally.
The decision cites a number of well known law bloggers, including Eugene Volokh, Instapundit, Randy Barnett, David Koppel.
I suspect that a short comment on this topic could get published somewhere.
I probably won't get around to writing it myself.
update: here are a few passages from the opinion.
Borrowing from the Court’s First Amendment
doctrine, the rigor of this judicial review will depend on
how close the law comes to the core of the Second Amendment
right and the severity of the law’s burden on the right. slip op. at 33.
Both Heller and McDonald suggest that broadly prohibitory
laws restricting the core Second Amendment
right—like the handgun bans at issue in those cases, which
prohibited handgun possession even in the home—are
categorically unconstitutional. 33.
First, we ask whether the challenged
law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee. . . . If it does
not, our inquiry is complete. If it does, we evaluate the law
under some form of means‐end scrutiny. 34-35.
Both Heller
and McDonald suggest that First Amendment analogues are
more appropriate... and on the strength of that
suggestion, we and other circuits have already begun to
adapt First Amendment doctrine to the Second Amendment
context. 41
Likewise, “[l]aws that burden political
speech are subject to strict scrutiny.” Citizens United v. Fed.
Election Comm’n,
On the other hand, “time, place, and
manner” regulations on speech need only be “reasonable”
and “justified without reference to the content of the
regulated speech.”
In election‐law cases, regulations affecting the
expressive association rights of voters, candidates, and
parties are subject to a fluctuating standard of review
that varies with the severity of the burden on the right; laws
imposing severe burdens get strict scrutiny, while more
modest regulatory measures need only be reasonable,
politically neutral, and justified by an important
governmental interest. See Crawford v. Marion Cnty.
Election Bd., 553 U.S. 181, 190‐91 (2008); Wash. State Grange,
552 U.S. at 451‐52; Burdick v. Takushi, 504 U.S. 428, 434
(1992); Lee v. Keith, 463 F.3d 763, 768 (7th Cir. 2006). “First
Amendment challenges to disclosure requirements in
the electoral context”—for example, laws compelling
the disclosure of the names of petition signers—are reviewed
“under what has been termed ‘exacting
scrutiny.’ ” Doe v. Reed, 130 S. Ct. 2811, 2818 (2010). This
standard of review requires “a substantial relation between
the disclosure requirement and a sufficiently important
governmental interest,” and “the strength of
the governmental interest must reflect the seriousness of the
actual burden on First Amendment rights.”
My thought is that not only will election law balancing tests be used to help establish a workable standard of review in gun cases, which currently operate in a state of indeterminacy, because Heller and McDonald are new and did not set out a standard, but also gun cases may at some point be used in election cases, which also operate in a state of indeterminacy.
The Burdick-Anderson-Norman framework lets us treat minor violations lightly, apply balancing to more serious questions and strict scrutiny to severe burdens.
But we have no test to know when a burden is severe,so the Court has upheld poll taxes (Crawford), censorship of political speech (Citizens United disclaimers), and a ban on political association by parties (Twin Cities) although each of these severely burdens political participation.
In Heller McDonald and Ezell, Alan Gura has won victories and established a meaningful Second Amendment. But there will be losses to follow, as Second Amendment rights are infringed by "reasonable regulation." Those cases in turn may be cited in future briefs by the "reform" crowd seeking to further burden or censor political speech and association. The emerging connection between First And Second Amendment jurisprudence bears watching, even by people who are solely election lawyers.
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