MARYLAND’S FIREARM SAFETY ACT: ATTACKING THE CORE OF THE SECOND AMENDMENT THROUGH THE VENEER OF PROMOTING PUBLIC SAFETY.
MARYLAND’S FIREARM SAFETY ACT: ATTACKING THE CORE OF THE SECOND AMENDMENT THROUGH THE VENEER OF PROMOTING PUBLIC SAFETY.
A COURT OF REVIEW IS BLIND TO INAPPROPRIATE, AND UNLAWFUL GOVERNMENT ACTION WHEN A COURT OF REVIEW IS PHILOSOPHICALLY PREDISPOSED TO INHIBIT THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS.
KOLBE VS. HOGAN:
HAD THE DISTRICT COURT OF MARYLAND REVIEWED MARYLAND’S FIREARM SAFETY ACT AS THE HELLER COURT REQUIRED, THE DISTRICT COURT WOULD HAVE SEEN THROUGH THE CHARADE OF THAT RESTRICTIVE GUN ACT THAT ATTACKS THE CORE OF THE SECOND AMENDMENT.
THE U.S. SUPREME COURT MAJORITY CAUTIONED, IN HELLER, AGAINST USE OF ANY TRADITIONAL STANDARD OF REVIEW TO TEST THE CONSTITUTIONALITY OF A LAW THAT IMPACTS THE CORE OF THE SECOND AMENDMENT.
The Arbalest Quarrel continues with its comprehensive, in depth analysis of Kolbe in light of the seminal U.S. Supreme Court Heller case.
Realizing the futility of articulating any standard of review for testing the constitutionality of government action that attacks the very core–the very essence–of a fundamental right, the Heller majority realized the need to dispense with all traditional standards of review and all hybrid versions of conventional standards of review in those instances where governmental action—in the Heller case, a total ban on firearms that the public traditionally and commonly uses for self-defense, namely firearms categorized as handguns, be those handguns semiautomatic pistols or single or double action revolvers—attacks the very essence, or core of the right. Justice Breyer, himself, who wrote a dissenting opinion in Heller, realized the conundrum posed in the application of traditional standards of review for testing the constitutionality of government action that is directed to the core of a fundamental right.
The dissenting Justice, Stephen Breyer, did realize, perceptively, that application of even a stringent standard, strict scrutiny—no less than application of the most relaxed standard of review, rational basis—would not be a fair standard for a Court to employ to test the lawfulness of a governmental action that is directed to the core of a fundamental right because Courts could still come to the wrong conclusion and effectively destroy a fundamental right. Breyer therefore thought that his novel interest-balancing inquiry would overcome problems associated with conventional standards of review. In support of use of his novel interest-balancing inquiry to test the constitutionality of the District of Columbia’s absolute prohibition on possession of handguns in the District, Justice Breyer said this (and we quote Justice Breyer, at length):
“In weighing needs and burdens [utilizing my interest-balancing standard to test the constitutionality of the District of Columbia’s absolute prohibition on possession of handguns in the District] we must take account of the possibility that there are reasonable, but less restrictive, alternatives. Are there other potential measures that might similarly promote the same goals while imposing lesser restrictions [Citation Omitted]? Here I see none.
The reason there is no clearly superior, less restrictive alternative to the District’s handgun ban is that the ban’s very objective is to reduce significantly the number of handguns in the District, say, for example, by allowing a law enforcement officer immediately to assume that any handgun he sees is an illegal handgun. And there is no plausible way to achieve that objective other than to ban the guns.
It does not help respondent’s [D.C. Government’s] case to describe the District’s objective more generally as an “effort to diminish the dangers associated with guns.” That is because the very attributes that make handguns particularly useful for self-defense are also what make them particularly dangerous. That they are easy to hold and control means that they are easier for children to use [Citation omitted]. That they are maneuverable and permit a free hand likely contributes to the fact that they are by far the firearm of choice for crimes such as rape and robbery [Citations omitted].
This symmetry suggests that any measure less restrictive in respect to the use of handguns for self-defense will, to that same extent, prove less effective in preventing the use of handguns for illicit purposes. If a resident has a handgun in the home that he can use for self-defense, then he has a handgun in the home that he can use to commit suicide or engage in acts of domestic violence [Citations omitted]. If it is indeed the case, as the District believes, that the number of guns contributes to the number of gun-related crimes, accidents, and deaths, then, although there may be less restrictive, less effective substitutes for an outright ban, there is no less restrictive equivalent of an outright ban.”
Justice Breyer concludes that no less restrictive means exists to promote the goal of promoting public safety than the District of Columbia’s total ban on handguns promotes and that, under the strict scrutiny standard, a total ban on handguns would therefore pass judicial scrutiny and therefore be found constitutional even though the Second Amendment right of the people to keep and bear arms is clearly burdened. As he says:
“The upshot is that the District’s objectives are compelling; its predictive judgments as to its law’s tendency to achieve those objectives are adequately supported; the law does impose a burden upon any self-defense interest that the Amendment seeks to secure; and there is no clear less restrictive alternative. I turn now to the final portion of the ‘permissible regulation’ question: Does the District’s law disproportionately burden Amendment-protected interests? Several considerations, taken together, convince me that it does not.”
So, is that the end of the inquiry? Does Justice Breyer assert that the D.C. handgun ban is constitutional even though a total ban on possession of handguns clearly burdens, and in a substantial way, the American citizen’s exercise of his or her fundamental right? No. Justice Breyer says that application of his standard is superior to that of application of even a stringent standard like strict scrutiny, for there is a second part to Justice Breyer’s test, even though he has already inferred that the burden on those who seek to exercise their Second Amendment right is substantial.” Justice Breyer goes on to say (and once again we quote Justice Breyer at length):
“First, the District law is tailored to the life-threatening problems it attempts to address. The law concerns one class of weapons, handguns, leaving residents free to possess shotguns and rifles, along with ammunition. The area that falls within its scope is totally urban [Citation omitted]. That urban area suffers from a serious handgun-fatality problem. The District’s law directly aims at that compelling problem. And there is no less restrictive way to achieve the problem-related benefits that it seeks.”
“Second, the self-defense interest in maintaining loaded handguns in the home to shoot intruders is not the primary interest, but at most a subsidiary interest, that the Second Amendment seeks to serve. The Second Amendment’s language, while speaking of a ‘Militia,’ says nothing of ‘self-defense.’ As Justice Stevens points out, the Second Amendment;s drafting history shows that the language reflects the Framers’ primary, if not exclusive, objective [Citation omitted]. And the majority itself says that ‘the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right . . . was codified in a written Constitution’ [Citation omitted]. The way in which the Amendment’s operative clause seeks to promote that interest–by protecting a right ‘to keep and bear Arms’ may in fact help further an interest in self-defense. But a factual connection falls far short of a primary objective. The Amendment itself tells us that militia preservation was first and foremost in the Framers’ minds. See Miller, 307 U.S., at 178, 59 S. Ct. 816, 83 L. Ed. 1206 (‘With obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces the declaration and guarantee of the Second Amendment were made,’ and the Amendment ‘must be interpreted and applied with that end in view’).”
“Further, any self-defense interest at the time of the framing could not have focused exclusively upon urban-crime-related dangers. Two hundred years ago, most Americans, many living on the frontier, would likely have thought of self-defense primarily in terms of outbreaks of fighting with Indian tribes, rebellions such as Shays’ Rebellion, marauders, and crime-related dangers to travelers on the roads, on footpaths, or along waterways [Citation omitted]. Insofar as the Framers focused at all on the tiny fraction of the population living in large cities, they would have been aware that these city dwellers were subject to firearm restrictions that their rural counterparts were not [Citation omitted]. They were likely then to have thought of a right to keep loaded handguns in homes to confront intruders in urban settings as central. And the subsequent development of modern urban police departments, by diminishing the need to keep loaded guns nearby in case of intruders, would have moved any such right even further away from the heart of the Amendment’s more basic protective ends [Citation omitted].”
“Nor, for that matter, am I aware of any evidence that handguns in particular were central to the Framers’ conception of the Second Amendment. The lists of militia-related weapons in the late-18th-century state statutes appear primarily to refer to other sorts of weapons, muskets in particular.”
Justice Breyer continues with his polemic, adding: “Regardless, why would the [Heller] majority require a precise colonial regulatory analogue in order to save a modern gun regulation from constitutional challenge?” The answer to Justice Breyer’s question should be obvious to anyone who recognizes the importance of the Second Amendment–as much now, in the present, as then, in the past. The Heller majority felt compelled to respond to antigun critics, including, most notably, those who, like Justice Breyer and Justice Stevens, curiously enough, have, in extrajudicial commentary and publications, made clear their desire to interpose foreign laws foreign jurisprudential values–alien to our unique history, our unique laws, and our unique Constitution–into their own methodological approach to U.S. Supreme Court case analysis and decision-making. Since the laws of Countries such as Great Britain and Australia, for example, have nothing even remotely analogous to our Second Amendment, one should reasonably conclude that anything set forth in the laws and jurisprudence of those Nations would be legally irrelevant to and certainly impossible to reconcile with our own system of laws and jurisprudence should anyone wish to insinuate such laws and jurisprudence into our case law anyway.
Justice Breyer concludes his polemic, by asserting essentially the argument we hear ad nauseum from antigun groups. It is this: Americans should leave to “democratically elected officials” of government the power to impose government’s will on the rest of us because government knows what’s best for all of us, even unto the veritable destruction of our fundamental rights and liberties. Justice Breyer asserts,
“‘As important, the majority’s decision threatens severely to limit the ability of more knowledgeable, democratically elected officials to deal with gun-related problems. The majority says that it leaves the District ‘a variety of tools for combating’ such problems [Citation omitted]. It fails to list even one seemingly adequate replacement for the law it strikes down. I can understand how reasonable individuals can disagree about the merits of strict gun control as a crime-control measure, even in a totally urbanized area. But I cannot understand how one can take from the elected branches of government the right to decide whether to insist upon a handgun-free urban populace in a city now facing a serious crime problem and which, in the future, could well face environmental or other emergencies that threaten the breakdown of law and order.”
So it is that Justice Breyer would apply his novel “interest-balancing” inquiry to test the lawfulness, the very constitutionality, of Maryland’s Firearm Safety Act, fully believing in and having complete faith in the usefulness of his novel standard for application to governmental actions that attack the core of the Second Amendment. Having, then, utilized his interest-balancing inquiry standard, he seems oblivious to the fact that, even with his preferred new test, no less than with any of the other conventional standards, he, along with anyone else who might be tempted to use his novel approach, would not be prevented from automatically ordaining the result wanted–which means that, notwithstanding Justice Breyer’s conviction that his novel test would preclude a foreordained conclusion, a Court that finds the Second Amendment repugnant will still come to the conclusion desired: a finding that governmental action that effectively bans the lawful possession of an entire category of firearms and that negatively impacts the core of the Second Amendment is lawful when, in fact, it isn’t. Indeed, one finds that Justice Breyer was not immune to the fatal flaw that can and often is the bane of all otherwise brilliant Jurists.
We find that the fatal flaw that exists is found to reside less in a presumed fault with any conventional or fanciful approach used by a Jurist to test the constitutionality of a governmental action than in the depth of the Jurist’s very being. That is to say, the fault, we see, rests, first and foremost, in the Jurist’s heart, not in the Jurist’s analytical and intellectual acumen. The late Justice Scalia recognized this, which is why he felt it necessary to discard any Judge-made test that might be applied to governmental actions that target the core of a fundamental right. Sadly, Justice Breyer did not see this, even when Justice Scalia pointed out the fatal flaw, which he, tactfully ascribed to Justice Breyer’s interest-balancing inquiry, rather than to Justice Breyer, himself.
INTEREST-BALANCING INQUIRY ANALYSIS SHOULD NEVER BE USED TO TEST THE CONSTITUTIONALITY OF GOVERNMENTAL ACTION THAT ATTACKS THE CORE OF THE SECOND AMENDMENT RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS.
What more do we find problematic in Justice Breyer’s Dissenting Opinion? Justice Breyer quibbles when he suggests that the Framers of the Constitution had considered muskets–Americans’ early long guns, rather than handguns–as the sorts of weapons that fall under the purview of Second Amendment protection. But, there is really nothing concrete to suggest that the Framers of the Constitution had sought to specify those particular weapons that fall within the core of the Second Amendment protection and those that do not. Had the Framers had any idea that, in the future, there would exist individuals and groups whose repugnance of firearms was so strong and whose efforts to abolish the right to keep and bear arms so emphatic–who would go to such great lengths to abolish that right, working methodically and inexorably to ban first one category of weapons and then another until the entirety of weapons in civilian hands would effectively be banned by Statute, irrespective of the language of the Constitution–then, we suspect, the Framers’ codification of the natural and fundamental right of the people to keep and bear arms in the Constitution would have been set forth with perspicuity. That the Framers thought the right codified in the Second Amendment so clear and obvious, and the need for it so transparent, they obviously didn’t feel further explication in the language of the Amendment necessary.
Since Heller had set forth in case law what had previously been set forth in most of the academic articles on the subject—the fact that the right of the people to keep and bear arms is an individual right, not merely a collective right, relegated to one’s service in a militia—antigun groups are now forced to attack the fundamental right of the people to keep and bear arms, one category of weaponry at a time. That is a slow, tedious process for them and one that antigun groups were, it seems, loathe to contend with but realize now they must contend with. So they are now, once again, since the early 1990’s, seeking to ban individual categories of weapons—one category at a time, until all firearms are banned. Exemptions would exist for certain groups such as police and the military. But, those exemptions would be stated with specificity and very narrowly drawn.
Antigun groups have found that the appellation, ‘assault weapon’ is a useful category because they can place a substantially large number of firearms in that makeshift category. The goal of antigun groups is to ban all semiautomatic weapons. So, if they are successful through use of the nomenclature, ‘assault weapon,’ as a prohibited category of weapons in State Statute, we will see more and more semiautomatic weapons placed in that category until all semiautomatic weapons are banned.
The loss of an antigun proponent, Judge Merrick Garland does not sit well with antigun proponents. Judge Garland might have sat on the high Court had the U.S. Senate Judiciary Committee capitulated to cajoling from Congressional Democrats and cajoling from the mainstream media. Judge Garland would now sit on the high Court, and Heller might, eventually, be overturned outright. And, had Hillary Clinton, a virulent attack dog, been elected U.S. President, we would see much of the Second Amendment dismantled by Executive fiat. Fortunately, neither one of these two worst cases scenarios came to pass. That doesn’t mean that antigun groups and antigun State Legislatures, and antigun members of the U.S. Congress, are not actively working, even as these words are being written, to weaken the Second Amendment. Those Americans who cherish their Bill of Rights and, especially, the sacred Second Amendment, must remain ever vigilant.
In reading Heller, one must keep uppermost in mind that Justice Breyer wrote a dissenting opinion, not a concurring opinion, where, utilizing his novel interest-balancing inquiry test, he found the District of Columbia’s ban on possession of handguns not to be unconstitutional even though the D.C. handgun ban infringed the very core of, the very essence of the Second Amendment. Yet, for all of his seemingly carefully executed, assiduous remarks, Justice Breyer ultimately “makes” Justice Scalia’s case for the futility of applying any standard of review to what is clearly a facially unconstitutional act. Justice Breyer ultimately presents, quite eloquently, actually, how a seemingly meticulously crafted argument can have absolutely devastating consequences for Americans if Justice Breyer were writing for the Majority in Heller, rather than for the Dissent. The “Pen” can destroy the Bill of Rights even more effectively than a force of arms.
As Justice Scalia made eminently clear, albeit tacitly, application of a standard of a conventional standard of review or application of Breyer’s novel interest-balancing inquiry to governmental action that attacks the core of the Second Amendment would still not prevent a Court that is philosophically opposed to the natural, right codified in the Second Amendment from drawing the wrong conclusion–a conclusion a Court wants: namely that an attack on the core of the Second Amendment will nonetheless pass judicial scrutiny, when such governmental action should not–when such governmental action should be struck down, and struck down hard.
Indeed, the interest-balancing inquiry test that Justice Breyer devised and used in Heller demonstrates the futility of employing a makeshift standard, any more than any of the conventional standards, because, once having applied his test, Justice Breyer finds–no less than would he find through application of rational basis, intermediate scrutiny, or strict scrutiny–the result he wants, the result he knew he would obtain: namely that a clearly unconstitutional law—the District of Columbia’s total ban on possession of handguns—is lawful.
Consider: if utilization of any test, rational basis, intermediate scrutiny, strict scrutiny, or Justice Breyer’s interest-balancing inquiry test cannot reasonably guarantee a sound conclusion, then perhaps the U.S. Supreme Court should consider dispensing with–scrapping–all of them, certainly where it is clear that governmental action is targeting the very core, the very essence of a fundamental right. A Court should not bother to go through, should not have to go through, numerous intricate, tortuous gyrations, pretending or fooling itself that it is possible to salvage a government action that is designed, on its face, to destroy a fundamental right, codified in the Bill of Rights. For, a government–be it federal, State, or local–can, under no circumstance or set of circumstances, constitutionally, rationally, legitimately, justify burdening the core, the very essence of our Constitutional rights and liberties.
How, then, ought a Court of competent jurisdiction proceed? A Court should simply ascertain, first, whether a governmental action is attacking the core of a sacred right. If so, then, that should end the matter. No further analysis is needed. The governmental action should indeed be struck down; must be struck down. There is no need to beat around the bush on this. The Heller Majority Opinion, penned by Justice Scalia, made that point abundantly clear.
PROCEEDING FURTHER WITH OUR ANALYSIS:
Commencing with the U.S. District Court of Maryland opinion, having, as the lower Court, the first look at the case presented to it by Plaintiff, Kolbe, and others, the District Court failed to heed Heller, falling into the same trap that Justice Breyer fell into.
The District Court of Maryland could not, though, employ Justice Breyer’s interest-balancing inquiry standard—much as it would have liked to—as that test was one devised by the Dissenting Opinion Justice, not the Majority, and, so, the case analysis presented by the Dissenting Justice in Heller, does not have precedential value.
What, then, did the District Court of Maryland do? The District Court of Maryland employed as a standard of review, a fallback—in this case, intermediate scrutiny–and the Court did so on the mistaken belief that the Heller Court Majority’s failure to clearly articulate a test–the failure of the Heller Court’s Majority to set forth, convincingly, at least to the satisfaction of the lower District Court of Maryland–a test or standard of review through which a Court might definitively determine, definitively ascertain, the constitutionality of a government action, meant that a lower Court is free to utilize any standard of review it wants, consistent—so it is—with prior rulings, in this instance, Fourth Circuit Court rulings, rulings, then, that precede Heller. The District Court of Maryland then fooled itself into believing it could apply its test reasonably, rationally, judicially, to reach the correct conclusion. But the Court could not do so and did not do so.
The District Court reached a wrong conclusion: finding Maryland’s “Firearm Safety Act” to be lawful, constitutional, notwithstanding that implementation of it burdens the exercise of the fundamental right of the people to keep and bear arms, and that the government action does so in an extensive, intensive, and inordinately intrusive manner.
In asserting the deficiencies inherent in interest-balancing, for ascertaining the moral good of actions, the great German Philosopher, Immanuel Kant, said this: “Woe unto him who searches in the winding paths of the theory of interest-balancing for some technique to uphold the debasing of human dignity.” “The Metaphysics of Morals 141 (Mary Gregor trans., 1991),” as cited in “Essay: In God’s Image: The Religious Imperative Of Equality Under Law,” 99 Colum. L. Rev. 1608, 1624 (October 1999).
We continue with our in-depth analysis of the dangerous and horrible Kolbe decision in Part Six of this ongoing series of articles.
Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.