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Dec. 22, 2015

Constitutional scholars debate Second Amendment

To better understand the legal framework governing firearms in the United States, a panel of Constitution scholars gathered to discuss the Second Amendment. Adam Winkler, professor, UCLA School of Law and author of "Gunfight: The Battle over the Right to Bear Arms in America"; John Eastman, professor, Fowler Law School, Chapman University and Director, Claremont Institute Center for Constitutional Jurisprudence; Erwin Chemerinsky, dean and professor, UC Irvine Law School

ROUNDTABLE DISCUSSION: Recent mass shootings in San Bernardino and Colorado Springs, Colo. have renewed the debate over efforts to limit or ban the sale of guns and ammunition. To better understand the legal framework governing firearms in the United States, Daily Transcript Submissions Editor Ben Armistead convened a panel of Constitution scholars to discuss the Second Amendment. Adam Winkler is professor of law at UCLA School of Law and author of "Gunfight: The Battle over the Right to Bear Arms in America". John Eastman is professor of law at Chapman University's Fowler School of Law and director of the Claremont Institute Center for Constitutional Jurisprudence. Erwin Chemerinsky is dean and professor of law at UC Irvine School of Law. Here is an edited transcript of their conversation.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Ben Armistead: What does that mean to you?

Adam Winkler: That sentence has confused generations of Americans. Many believe it protects an individual right to bear arms. Others believe that it protects the right of states to organize militias and to keep them armed free from federal interference. But the Supreme Court held in 2008 that the Second Amendment protects the individual right to bear arms unrelated to militia service.

John Eastman: I agree. For the Founders, the entire citizenry was the militia, so the notion that we had a right to keep and bear arms only by virtue of being in a militia is redundant to being a citizen.

Erwin Chemerinsky: The Second Amendment means what it says. It is one of the few constitutional provisions that states its purpose. It creates a right to have firearms, but for purposes of militia service.

BA: Why do you think that the Founding Fathers decided to include the prefatory clause in the Second Amendment but in no other amendments?

AW: The prefatory clause explains the reason why the Framers thought it was important for people to have a right to bear arms. We think of the right to have arms as an ability to protect yourself against an ordinary criminal. That wasn't the major concern of the Framers. They were thinking about having the ability to fight off tyranny.

JE: Furthering that theme, if one of the reasons why the right to keep and bear arms is to provide a check against governmental tyranny, the notion that you only have that right by virtue of a beneficent government seems contradictory. Joseph Story said that the Second Amendment is there to provide a moral check against government. It's a moral check because the people, well-armed, operating within a militia, are able to defend themselves against foreign invasion and against domestic tyranny, so it's less likely the government would become tyrannical in the first place.

EC: I disagree that we'll ever know what the Framers intended. And even if we did, I don't believe it's controlling on subsequent generations. It was Justice Antonin Scalia in District of Columbia v. Heller [554 U.S. 570 (2008)] who said the first part is prefatory and the second is operative. But I believe the first clause is as operative and as important as the second clause. In an earlier draft of the Second Amendment, there's also a clause that would have given an exemption for people who were conscientious objectors from militia service. That shows that the Second Amendment is really about militia service.

JE: Except the militia was everybody. And the language of the exemption was because they understood that we could actually compel you to keep and bear arms as part of your duties of citizenship, and it was the entire citizenry or the entire adult male population who were required to fill that duty.

EC: You said two contradictory things. You said it was a right of everyone to have guns and a right of all male citizens to have guns. If you really want to follow your philosophy, only male citizens would have a right to have guns, which I think shows the absurdity of looking at the Framer's intent. I also think you improperly equates having guns for militia service with who is a member of the militia. Those aren't the same things.

BA: The Supreme Court recently declined to hear a case about a challenge to an assault weapon ban in Illinois. Given Scalia's recognition that the Second Amendment is not unlimited, does this suggest the court thinks a ban on assault weapons is clearly constitutional?

AW: It was a case where Highland Park banned assault weapons and high capacity magazines. These two reforms are at the top of the current gun control movement's agenda. The Supreme Court allowed a lower court decision to stand. The 7th U.S. Circuit Court of Appeals had held that assault weapon bans were OK. You can't read a lot into the denial other than perhaps that the justices are not eager to take a Second Amendment case, at least when there's not a clear circuit split. So far, every court that has ruled on these types of bans has upheld them.

JE: I agree. Compare it to the same-sex marriage cases from just the last couple of years. A number of lower courts had decided that issue. The Supreme Court denied cert a large number of them until we got a case from a circuit that went the other direction. One thing you can get insight from is that two justices wrote a dissent from the denial of cert making clear that they think the lower court decision is flatly contradictory to Heller and McDonald v. City of Chicago [561 U.S. 742 (2010)]. EC: I agree that denial of review is just that, the denial of review. But I do want to emphasize the language in Heller, where Justice Scalia said the Second Amendment is not absolute, that the government can regulate the types of weapons that people have, who has weapons, and where they can have them. It's for that reason that every circuit to rule so far has upheld these bans.

JE: We should point out that Justice Scalia's language is not limited to the Second Amendment. You could say the same thing about every constitutional amendment - none of them are absolute.

BA: Lower courts appear to embracing Justice Stephen Breyer's Heller dissent more than Scalia's majority opinion, by applying a form of intermediate scrutiny. Are they rejecting Heller or struggling with how to apply it?

AW: You could look at it as a rejection of Heller in that Justice Scalia's opinion insisted that originalism was the appropriate way to determine which laws are constitutionally permissible. Lower courts have not been doing a history-focused analysis. Virtually every federal circuit has agreed that intermediate scrutiny is the default standard for gun control laws, and that does seem to be more like Justice Breyer's dissent. We're seeing broad deference to legislatures who are trying to enhance public safety by restricting access to guns.

JE: I also think it's a rejection of Heller. In Heller, and more importantly in the follow-on case, McDonald, the court makes clear that the right to keep and bear arms is a fundamental right. Like other fundamental rights, it ought to be subjected to the strictest of scrutiny. It can be restricted only if the government has a compelling interest and the restrictions are narrowly tailored. Many lower courts are giving a level of deference to the state legislative bodies that is more commonly seen in rational basis or highly deferential review. That's not compatible with Heller.

EC: I don't think it's a rejection of Heller, and I don't agree with John that Heller treats this as a fundamental right. Justice Scalia's opinion doesn't indicate the level of scrutiny that is being used. Nowhere does he use the words "fundamental right." Nowhere does he use the language of strict scrutiny, "necessary to achieve a compelling purpose." In fact, he says that government can regulate who has guns, like keeping people with a felony conviction or history of mental illness from having guns, that government can regulate where guns are located, like preventing them in airports or schools, that government can regulate the types of weapons. That seems different than strict scrutiny. I think lower courts have been trying to apply what the Heller said. At this point only one circuit, the 6th Circuit, has said strict scrutiny. Every other circuit to rule has rejected strict scrutiny, because the court didn't adopt strict scrutiny.

JE: But the court also did not accept rational basis review. That was put before them and they specifically rejected that. Though I agree that the court did not settle the question.

AW: It's important to recognize that fundamental rights do not always trigger strict scrutiny. There's no strict scrutiny under the Fourth Amendment, and it's a fundamental right. Most of the provisions of the Fifth Amendment that protect fundamental rights do not trigger strict scrutiny. Sixth Amendment, no strict scrutiny. The right to bear arms is a fundamental right, but it can still trigger a lower level of heightened scrutiny.

JE: If I'm restricting free speech, for example, it's often subject to strict scrutiny. But if I'm restricting the time, place or manner in which you engage in that speech, then I get a lower level of scrutiny.

BA: In Peruta v. San Diego County [10-56971], a panel of the 9th U.S. Circuit Court of Appeals struck said San Diego's requirement that citizens demonstrate "good cause" to obtain a concealed-carry permit is unconstitutional in that the sheriff there did not consider self-defense to be a good cause. Can the government require people to show "good cause" to obtain a permit to carry a gun in public?

JE: If you have an individual right to keep and bear arms, the government would need to demonstrate cause not to give it to you rather than you demonstrate cause to get it. Ever since Heller, there have been a number of challenges - e.g., "Heller is limited to self-defense in the home." Lower courts are rejecting that analysis, and the Peruta panel appropriately rejected those claims as well.

EC: En banc review has been granted, so we don't know what the 9th Circuit will do in Peruta. Also, Judge Diarmuid O'Scannlain, the most gun rights judge on the 9th Circuit, wrote the opinion. The Supreme Court made it clear that the government can restrict who has guns. To achieve that, the government surely has to be able to license who has guns. In both Heller and in McDonald two years later, the court spoke only on the right to have guns in the home for the sake of security. The Supreme Court has never addressed whether there's a right to have guns outside the home.

JE: I agree that the 9th Circuit is not necessarily going to follow O'Scannlain. He is probably the strongest Second Amendment judge on the 9th circuit, but he's also the one most aligned with the majority opinions in Heller and McDonald. If the 9th Circuit en banc reverses his decision, I think we're going to see a cert grant and a revival of that decision. The only reason there's language about guns in the home in Heller is because that is what the DC statute was addressed to. Heller talks about the fundamental right to self-defense, and the historical discussion of where that comes from in the common law is not limited to the privacy of one's home. This is a right to self-defense, and the limitations that put on it for felons or the mentally unstable does not mean the burden is on the individual to show he is not in those categories or that he has some extraordinary need for self-defense.

EC: I want to be careful to separate what Heller and McDonald say versus what our interpretations are. All Heller talks about is a right to have guns in one's home for the sake of security. Perhaps the court will go further in other cases. Perhaps the court will say that this is a fundamental right, but that's not what Heller says. Perhaps the court will adopt heightened scrutiny, but that's not what Heller says.

JE: That's not true. Heller talks about the right to keep a gun in your own home because it's part of the broader right to self-defense. Heller talked about the right to keep a gun in your home because that's what the DC statute prohibited. But the language of the opinion is about a broader right to self-defense.

AW: This debate highlights that this is really the big open question. Does the right to bear arms extend outside the home? If it does, what kind of permitting or licensing can the government impose? Some states have shall issue laws, where basically any law abiding person who doesn't have a criminal record or history of mental illness can carry a gun on the street. Other states, a minority of states, and some big cities like Los Angeles and San Francisco and San Diego, have may issue policies that require a sheriff to determine that someone has a good cause to carry a gun. The Supreme Court has turned downed several of these cases recently. It seems like they're not that interested. Who knows what's going to happen in the future, but the decision not to decide on assault weapons serves as more evidence that the justices don't seem eager to do this.

BA: After the shootings in San Bernardino, Congress rejected a couple bills. One would have expanded background checks and one would have kept people on terror watch lists from buying guns. Were those the kinds of regulations that Scalia said were possible in his Heller opinion?

AW: Much of the debate is focused on whether we're going to ban people on terror watch lists from purchasing firearms. Such a list and a prohibition, depending on how it was designed, would be constitutionally permissible. Clearly the government has a strong reason to keep someone who is suspected of terrorism from buying a weapon. Republicans in Congress point out that there are significant due process concerns with the particular lists that we have now. The no fly lists themselves have been subject to constitutional challenge. Certainly government can keep suspected terrorists from buying a gun, but government does have to provide due process of law and the current proposals are pretty weak in terms of due process protection.

EC: There is no reasonable ground for not having universal registration before somebody can get a gun. The Supreme Court has made it clear, as we've talked about, that the government can restrict who has guns. Registration is the key mechanism. Universal registration seems to me clearly right and undoubtedly constitutional. If Congress won't pass universal registration, it just shows to me the influence of the extremist NRA in this debate - in a way that's out of step with what the American people want.

JE: One problem with universal registrations has happened in New Jersey - confiscation efforts will often follow. They will restrict additional weapons that cannot be lawfully possessed, and now they have list to go out and confiscate. People are nervous about the slippery slope of restricting the fundamental right to own weapons generally that begins with registration. We all support background checks, but we're not even implementing background checks now. In California, our background databases are a mess. You can't run the background checks when the database is being incompetently managed.

EC: I hope we would all agree that the government constitutionally can keep those with a felony conviction, or history of mental illness, from having guns. The only way to be able to do that is to create a system of background checks and universal registration. If the one we have now isn't desirable, that just means we need to create a better one. It's inexcusable to me that we have loopholes that allow people who have a history of mental illness, criminal records, or suspected of terrorist activity with any due process provided, to still be able to acquire weapons.

BA: Can the government limit where you can buy and sell guns?

AW: There isn't so much of a "gun show loophole," though it's often referred to as that. Sales at gun shows operate under same rules as sales elsewhere. If you're a federally licensed dealer you have to do a background check when you sell a gun - but you don't have to be a federally licensed dealer to sell a gun. Anyone can sell a gun. And if anyone sells a gun, other than in a few states like California, they don't have to do a background check. That means a significant but unknown number of lawful gun sales happen without a background check. Gun shows are attractive places both for people who want to sell guns without doing a background check and for someone who wants to buy a gun without going through a background check. We definitely could close that loophole consistent with the Second Amendment. Whether we could given the divide in Congress and the White House seems to be a harder question.

JE: A licensed gun dealer selling guns at a gun show is still required to conduct a background check, and they do. So it's really the "private sale loophole." But the private sale without the background check is illegal in California today. So the transfer of the two AR-15s to the couple that did the San Bernardino shooting was already illegal in California. And having that law on the books didn't stop it. One of the great issues in the gun control debate is are these added layers of gun control going to actually stop the people who are already violating the laws on the books. And the answer is of course not. They're already violating the law. The law of murder. The weapons that the couple had included pipe bombs, which are not legal under any version of the Second Amendment, and that didn't stop them. People on the gun rights side of this debate are suspicious of these new layers of gun control because they seem to be pretext for limiting Second Amendment rights rather than naming and solving a problem.

EC: There's no doubt the government could require that anyone who sells guns be registered and do background checks. Just like the government can say that anyone who sells contraceptives has to be a licensed pharmacist. It's important to separate whatever we believe is the right to have guns from the ability of the government to regulate the business of selling guns. They're related, but not the same right. We can argue at depth what the experience of other countries is, but if you make it harder to get guns, you can keep them away from some people who are very dangerous. You might not have prevented the San Bernardino tragedy, but you will prevent some tragedies.

BA: Judge Richard Posner of the 7th Circuit has said that a true originalist would have come to the opposite conclusion of Scalia in Heller. Will the Second Amendment always be subject to the political leanings of the court?

AW: I don't think any issue gets addressed by the Supreme Court without being filtered through the experiences and philosophies of those justices. Judge Posner has articulated that view of judicial decision-making in many other contexts too, so it's not surprising that he is critical of the Supreme Court's decision in the Heller. One thing many originalists criticized is Heller's logic for protecting handguns. The court said that these guns are commonly used, commonly preferred by people for self-defense. There may be some argument there, but there's no originalist history that was used to say these are the types of firearms that are equivalent to the types of firearms that we had at the time in some way that ties it to original meaning. If Heller becomes a settled part of our jurisprudence, both in recognizing a right to bear arms and a legitimate space for the government to adapt public safety laws that regulate guns and gun owners, I think eventually we can move forward and break out of the spiral that seems to take us towards evermore extreme positions on guns.

JE: Many of Scalia's defenders, most prominently Ed Whelan, have dismantled Judge Posner's critique piece by piece. I think it's a full answer to Posner that when you collapse the individual right to keep and bear arms and the militia clause into a recognition historically that the entire male citizenry was the militia, that his critique of Scalia's originalism falls flat. What he really wanted is for Chicago to be able to regulate guns, so when he's walking home from the courthouse he didn't have to confront it. But the people that he's likely to run into on the Chicago streets walking home have their guns illegally in the first place by and large, they are already engaged in criminal conduct. So the notion that a new layer of restriction is going to somehow make that walk safe is naïve.

EC: It's interesting that not only did Judge Posner write an article critical of Justice Scalia's reasoning, but so did a conservative judge from the 4th Circuit, J. Harvie Wilkinson. The reality is that you're not going to resolve the meaning of the Second Amendment through originalism. The language of the Second Amendment can be read for either view. As Justice John Paul Stevens showed in his dissent, the history of the Second Amendment can be read on either side. So it's not surprising that the five conservatives on the court took the position favored by conservatives, and the four more liberal justices to the positions favored by liberals. This dispute about the Second Amendment will go on into the future. I'm hopeful that what Adam says is right. I'm hopeful that the direction he points to in his brilliant book is right, that there might be a middle course that recognizes a right to have guns, but allows regulation. But I don't think that this debate is going to be resolved anytime soon.

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Ben Armistead

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