Scott Forsyth, The Daily Record Newswire
“Repeal the S.A.F.E. Act, Honor the Second Amendment,” shout the many lawn signs, mostly throughout rural New York. The S.A.F.E. Act is the set of gun control laws the legislature adopted after Sandy Hook.
The signs are a great example of free speech in action. The message is political, but municipalities are rightly not enforcing their time limitations on the posting of lawn signs.
As for the message, do the laws really violate the Second Amendment? I will let the courts answer the question. Here is the likely framework for their analysis.
Bear in mind the framework is evolving. Less than five years ago the Supreme Court ruled for the first time the Second Amendment protects “an individual right to keep and bear arms,” District of Columbia v. Heller, 554 U.S. 570 (2008).
Heller involved a ban on the possession of handguns at home. The court observed that the right to keep arms was most “acute” in the “defense of hearth and home” by “law-abiding, responsible citizens,” Id. at 635. A handgun was the most common and most practical way to defend the home. Hence the ban touched the core of the Second Amendment right and could not be sustained.
The court declined to delineate what conduct the Second Amendment protected. Doing so would require an even greater textual and historical analysis of the amendment.
Instead, the court listed examples of arms and conduct outside the scope of the amendment. They are “weapons not typically possessed by law-abiding citizens for lawful purposes,” the possession of firearms by felons and the mentally ill, and the carrying of weapons “in sensitive places,” such as schools. Finally, government may “impos(e) conditions and qualifications on the commercial sale of arms” without infringing on the Second Amendment, Id. at 625-627.
The court also declined to identify the proper standard of review of a law that did regulate conduct protected by the Second Amendment, other than to say in a footnote the standard was not rational basis, Id. at 628.
Heller opened up the courts to litigation challenging gun control laws. How have they responded to what Heller left unanswered? Generally, by adopting a two-part inquiry. Does the law in question burden conduct that is within the scope of the Second Amendment as historically understood? If so, does intermediate scrutiny or strict scrutiny apply?
The answer to the second inquiry borrows from First Amendment case law. The closer the law comes to the core of the Second Amendment right and the more severe the law’s burden on the right, the greater the need for strict scrutiny.
Enough of a primer, let us see the two-part inquiry in action.
In 1996, a California court convicted Daniel Chovan of the misdemeanor of inflicting corporal injury on a spouse. As a result, a federal law barred him from possessing any firearm for life, 18 U.S.C. § 922(g)(9).
Undeterred, in 2009 Chovan applied to purchase a firearm. He marked no to the question about ever being convicted of a domestic violence misdemeanor. A background check revealed his conviction and his application was denied. The check also triggered a FBI investigation. The FBI found video of him on the Internet shooting rifles and conducting border patrols.
The FBI raided his house and found four firearms. He was charged with unlawful possession. He moved to dismiss on the grounds the federal law was unconstitutional. Both the district court and the circuit court upheld the law, United States v. Chovan, No. 11-50107, slip op. (9th Cir. 2013) Here is why.
At first glance, Chovan’s burden is similar to the plaintiff’s in Heller. Both cannot possess guns at home, a conduct lying at the core of the Second Amendment right.
The government argued the prohibition on the possession of firearms by persons “perceived as dangerous or violent” was “long-standing,” akin to the ban on felons, and thus outside the scope of the amendment. The court disagreed.
It observed Congress did not enact the law being challenged until 1996. Also, Heller made no mention of misdemeanants, just felons. Cohen “is entitled to some measure of Second Amendment protection to keep and possess firearms in his home for self-defense.”
Having said that, the court turned around and stated Cohen’s claim “is not within the core identified in Heller,” because he is not “a law-abiding, responsible citizen.” He has a “criminal history as a domestic violence misdemeanant.” Consequently, the court chose intermediate scrutiny, not strict scrutiny, to test the validity of the law.
As you might expect, the court found a substantial government interest for the law in the prevention of domestic gun violence. Keeping guns from persons convicted of domestic violence serves this interest, because recidivism is high; domestic abusers use guns, and guns are more likely to kill.
A concurring judge applied strict scrutiny to uphold the law. He pointed out the courts, not Congress, should determine what conduct the Second Amendment protects. He was troubled by the prospect of Congress expanding the bar to all misdemeanants and even to persons convicted of minor infractions, like disorderly conduct.
Chovan provides a lot of food for thought. Look for some of that food to be served anew in the decisions that pass on the constitutionality of the S.A.F.E. Act.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
