Monday, September 28, 2015

Court Rejects Once-a-Month Bill of Rights

Eric Segall has an article on the Daily Beast that seems to suggest that, given the chance, the Supreme Court would reverse a decision out of the US Court of Appeals in Washington. The DC Circuit, in a split 2-1 vote, struck down DC's “one gun a month registration rule.” Limiting gun registration to one a month effectively limits additions to an individual's gun safe to one a month, because such guns have to be registered.

The recent decision reflects the continued battle by Dick Heller to vindicate his rights under the Second Amendment. While the three judge panel upheld six gun regulations in what was, once, the Murder Capitol of the United States, the Court struck down a rule that only one gun a month could be registered with the City.

Taking cases to the Supreme Court is what attorneys do ... when they are paid well, or when they work on hotly contested issues of public policy.

I know.

I did exactly that for twenty five years, including twenty one years as Senior Counsel with the American Center for Law and Justice. Still, a good attorney knows when to call it quits, when not to suggest that his client spend money that will, essentially, be wasted. Segall apparently thinks an attempt at Supreme Court review would not waste the time and money expended.

One of the tasks of attorneys that regularly practice before the Supreme Court – a task I undertook many times for my employer – is to evaluate the facts of a case, the condition of the law on a subject, and the opinions and decisions of the justices of the Supreme Court, so that a client has the most well-informed basis on which to decide whether to pursue review of their case at the Supreme Court. That kind of consideration makes lots of sense, just given the costliness of seeking Supreme Court review. Depending on legal fees and the costs of printing and service of legal documents, a request to the Supreme Court to review a case can cost into the six figures. Just the preliminary stage of asking for review can run that high.

Obviously, issue organizations, the one I worked for, and others, like the ACLU, the NRA, the NAACP, raise significant funds to carry such cases to the Court, and carefully select cases for the purpose of winning strategic decisions from the Court. Segall’s post urges the District of Columbia and gun control advocates to go all in on this particular case. His advice rests on two principal points.

First, in his view, the temper of the times is quite different today than nearly a decade ago when the Supreme Court issued its decision confirming that the Second Amendment protects an individual right to keep and bear arms. Segall’s post suggests that the school and public shootings and the public temper resulting from them puts the Court in a different position than when the Court decided Heller. Until District of Columbia v. Heller, gun control advocates persistently claimed that cities, States, and the federal government had a free hand in regulating, restricting, even prohibiting gun ownership, because, as they saw the matter, the Second Amendment only protected the right of States, rather than the rights of individuals. Heller rejected that view.

Second, Segall asserts, because the restriction that the DC Circuit struck down only regulated the pace of gun purchasing and accession to a private owner’s “armory,” it is different in its essential character. On that point, of course, he is not entirely wrong. There is a none-too-subtle difference between telling a man he cannot own a single weapon and telling him that he may only register one gun a month with the District. If that rule had been in place since the day the first Heller decision came down, and a gun enthusiast had wanted to do so, he could have added nearly 75 handguns to his Washington, DC, based collection in the intervening period. So, sure, there is a difference between restricting and forbidding.

The judges that struck down the one a month rule explained their decision as follows:
The District has not presented substantial evidence to support the conclusion that its prohibition on the registration of “more than one pistol per registrant during any 30-day period,” D.C. Code § 7-2502.03(e), “promotes a substantial governmental interest that would be achieved less effectively absent the regulation.” []

It is therefore unconstitutional.

The District argues that the limitation could reduce gun trafficking and that it would further promote public safety by limiting the number of guns in circulation, as the District “could reasonably conclude that more guns lead to more gun theft, more gun accidents, more gun suicides, and more gun crimes.” 

As for the District's first argument, what little expert testimony it presented indeed indicates that limiting gun purchases in turn might limit trafficking in weapons. The experts' conclusion that limiting gun registrations would likewise reduce trafficking is, however, unsupported by the evidence.  For example, Chief Lanier stated "[s]tudies have shown that laws restricting the registration or purchase of multiple firearms in a given period are effective in disrupting illegal
interstate trafficking of firearms."  Yet the only study she and the District's other witnesses cited has nothing to do with "laws restricting registration[.]"

One of the experts also testified from his own observation that w hen Virginia limited firearm purchases to one every 30 days, fewer guns bought in Virginia were used in crimes committed in the District; traffickers , he observed, instead sourced more guns through straw purchasers in Maryland. But even if this is true, t he suggestion that a gun trafficker would bring fewer guns into the District because he could not register more than one per month there lacks the support of experience and of common sense . Indeed, as Heller notes, even Chief Lanier acknowledged that the efficacy of purchasing limitations in preventing trafficking may have little bearing upon the efficacy of registration limitations in doing so. 

As for the District's second argument, one of its experts testified that, in his opinion, "the most effective method of limiting misuse of firearms, including homicide, suicide, and accidental injuries, is to limit the number of firearms present in a home."  Accepting that as true, however, it does not justify restricting an individual's undoubted constitutional right to keep arms (plural) in his or her home, whether for self - defense or hunting or just collecting, be cause, taken to its logical conclusion, that reasoning would justify a total ban on firearms kept in the home.
Now as to the temper of the times being different today, Segall forgets, or ignores, that the Supreme Court decided Heller in 2008. The case was briefed by the parties, the case was argued before the Court, the justices conferenced their views, and the Court issued its decision in the immediate aftermath of the 2007 mass shooting at Virginia Tech. The shadow of Columbine stretched out too, though it was nine years since that shooting. The immediacy of the Virginia Tech shooting, however, belies the notion that more recent shootings make for a different social construct today.

Against the DC Circuit’s reasoning, Segall contends that now is the time to act, to pursue review in the Supreme Court, and to do so with his seeming expectation that the Court would overturn the decision of the DC Circuit and affirm the power of municipalities like DC and, presumably, States, to restrict the pace of gun purchasing by individual gun owners.

Segall expressly invokes a notion popularized by Mark Tushnet, a professor of constitutional law, about the kinds decisions one is likely to see issued by the Supreme Court. Tushnet’s view, simplified, is that, if you cannot imagine a New York Times headline reporting the outcome of a Supreme Court case, then it is likely the Court would not issue the decision.

Tushnet’s theorem, however, is not so nearly helpful a tool as Segall believes.

A few examples suffice to show what is wrong with the theorem. Remember that the notion is, if you cannot imagine the decision of the Supreme Court as a headline on the New York Times, then it is unlikely the Court would render the decision.

Yet, the Supreme Court struck down the laws of virtually every State in the Nation, and its first decision on the topic of abortion, created a legal vacuum in which women were free to have an abortion at anytime during the ninth months of gestation, and for any reason at all, or for no reason whatever.

Could you picture, back in time, the New York Times publishing the headline:

“Supreme Court Greenlights Killing Babies Day Before Scheduled Delivery”


“Constitution Guarantees Right of Women to Murder Children”

Well, no, you probably could not. 

Travel back to the eve of the last century. We are in an era following a bloody civil war that cost nearly half a million lives and, in today’s value, Eighty Billion Dollars in plundered wealth. The war ended, the Nation undertook its long, slow healing, beginning with the addition of three amendments to the Constitution. One of those amendments, the Fourteenth, contains the first, and only, express requirement that governments must guarantee to all their citizens the equal protection of the law. In that clime, how likely would you consider a headline such as this one:

“Negro Complaints Over Segregated Train Cars Have No Merit, Supreme Court Rules”


“In 9-1 Decision, Court Holds Equal Protection Does Not Require Equal Treatment”

Although the “Greatest Generation” is fading into memory by the minute, could men and women that lived alongside, worked with, did business with, Americans of Japanese descent imagine a headline such as this:

“No Harm, No Foul: Locking Up Japs Without Due Process A Necessary Tool In War Time.”

Of course, in these cases, and in most every one that the Court ever decides, there is more than one way to describe what it is that the Court is doing. For example, in the Roe v. Wade case, it could be easily imagined that the New York Times might run a headline such as this one:

“Abortion Ban Denies Women Due Process of Law.”

Or, in the era of Jim Crow laws, one could imagine a headline saying,

“Constitution Does Not Prohibit States From Regulating Private Contractual Relationships.”

Or, in the aftermath of Pearl Harbor, one could easily picture a headline such as this one:

“Temporary Relocation Protects Japanese Americans From Danger, Provides Port Security.”

You see, I think, the problem with a tool like Tushnet’s. Every circumstance in life can be described in more ways than one. If one version of a story makes a plausible headline, then the Court might take a case that produces such a headline? There are better ways to predict what cases the Supreme Court will take to review. Imaginary headlining is not typically a line item in a lawyer’s billing to his client.

So, in this case, Segall says, “Strike now, while the iron might be hot.” Perhaps he correctly reads the temper of the Court. Perhaps a petition from review, asking the Court whether a government can legitimately restrict a citizen to the exercise of a constitutionally protected right to a periodic occurrence of one time a month. Perhaps the Court would uphold a City ordinance limiting demonstrators to one protest a month. Perhaps the Court would uphold a federal statute guaranteeing an accused to representation by counsel once a month. Perhaps the Supreme Court would sustain a state law limiting the New York Times to a schedule of once a month publication.

Yes, guns are different.

Yet, a persons rights with respect to guns, their ownership, and their availability to them as a tool of political participation, are full partners in the Bill of Rights, and in the essential rights of man.

Segall can imagine the Court taking a case in which it would affirm limits on the periodic addition of weapons to one’s personal armory. I can too. But only because I do not find it difficult to imagine a Supreme Court unhinged from the Constitution, unconnected to the natural law that the Bill of Rights respects, and too full of its purpose and mission to realize how its aberrations of law foment political and social instability.