Column: The Newton Massacre and Second Amendment Turmoil (New York Law Journal)

The December massacre of 20 Connecticut schoolchildren by a man armed with an assault rifle has triggered a national debate about gun regulation, a dispiriting rush to buy guns, and the speedy adoption in New York of legislation bearing on various aspects of weapons ownership and use.

All of this comes at a tumultuous time for constitutional rights, as the courts have been grappling with a torrent of cases unleashed by two recent United States Supreme Court decisions holding for the first time that the Second Amendment confers on individuals – as opposed to state militias – a right to bear arms.

In three cases decided in the last eight months, the Second Circuit has started to confront fundamental questions about the contours of the Second Amendment and the critical issue of its relationship to other protections in the Bill of Rights, particularly those in the First Amendment. Two of these cases appear to be test cases and likely are part of a national strategy by gun-owner advocates to expand upon the newly discovered Second Amendment.

A Brief Background

The Second Amendment provides, “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.” Until recently the Supreme Court had never construed that provision as conferring on individuals any rights, with the Court having expressly rejected the proposition in 1939 in United States v. Miller.

That all changed in 2008 when the Court in District of Columbia v. Heller ruled that Second Amendment protections extended to individuals subject to federal jurisdiction (namely the District of Columbia). At issue in >em>Heller was a complete ban on handguns in District of Columbia homes, with the Supreme Court holding the ban would be unconstitutional “[u]nder any of the standards of scrutiny the Court had applied to enumerated constitutional rights.”

Two years later the Court vastly expanded Second Amendment rights by extending them to individuals subject to gun restrictions imposed by states and localities. In McDonald v. City of Chicago the Court invalidated a Chicago ordinance that, like the one at issue in Heller, banned handguns in the home.

As is often the case with Supreme Court decisions, Heller and McDonald left many questions unanswered. What makes this situation so unusual and interesting, however, is that the lower courts have been left to construct an entirely new field of law. The three Second Circuit cases to date illustrate the challenges and dangers of this enterprise.

Transporting Guns Across State Lines

The Second Circuit’s first post-Heller/McDonald reported decision presented a challenge to a provision of a federal criminal law that prohibits (with narrow exceptions) persons from bringing into their state of residence firearms purchased outside the state. Decided last June, United States v. Decastro involved Angel Decastro, a New York resident who had been involved in a violent incident in New York, which prompted him to consider applying for a New York gun permit. After a police officer unconnected to the permit process told him there was “no way” he would get a permit, he chose not apply for one but instead lawfully bought a gun in Florida and then brought it to New York. Subsequently convicted of having violated the federal importation prohibition (18 U.S.C. § 922(a)(3)), he appealed.

Before the Second Circuit, Decastro claimed the federal importation provision was unconstitutional because it effectively required one to obtain from one’s own a state a permit to possess a gun in the state. The primary issue on which the court focused is not sexy but is central to constitutional challenges: the level of scrutiny to be applied to the challenged action. Specifically, the issue was whether the federal gun-importation provision was subject to “heightened scrutiny,” be that either the most stringent “strict scrutiny” or even the less rigorous but nonetheless substantial “intermediate scrutiny.” Whether heightened scrutiny applied depended, in turn, on whether the federal provision placed a “substantial burden” on Second Amendment rights.

For those concerned about a mushrooming Second Amendment, Chief Judge Dennis Jacobs’s opinion provides some comfort, as he found that the federal statute placed no substantial burden on Second Amendment rights, an approach that would effectively immunize many gun regulations from legal challenge. At the same time, his reliance on doctrine protecting other constitutional rights is deeply worrisome, given the possibility that narrow interpretations of the Second Amendment would be used to narrow other guarantees:

Given Heller’s emphasis on the weight of the burden imposed by the D.C. gun laws, we do not read the case to mandate that any marginal, incremental or even appreciable restraint on the right to keep and bear arms be subject to heightened scrutiny. Rather, heightened scrutiny is triggered only by those restrictions that (like the complete prohibition on handguns struck down in Heller) operate as a substantial burden on the ability of law-abiding citizens to possess and use a firearm for self-defense (or for other lawful purposes). . .

Reserving heightened scrutiny for regulations that burden the Second Amendment right substantially is not inconsistent with the classification of that right as fundamental to our scheme of ordered liberty in McDonald v. City of Chicago. A similar threshold showing is needed to trigger heightened scrutiny of laws alleged to infringe other fundamental constitutional rights. The right to marry is fundamental, but reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship are not subject to the “rigorous scrutiny” that is applied to laws that interfere directly and substantially with the right to marry. The right to vote is fundamental, but the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.

The weight of the burden matters in assessing the permissible bounds of regulation in other constitutional contexts as well, such as takings, abortion, and free speech.

Because the federal law places no restrictions on the ability to obtain a gun permit from one’s own state, the Second Circuit held the law does not substantially burden Second Amendment rights and was readily justifiable as a means of allowing states to regulate guns within their borders. As for the constitutionality of New York’s gun-permit scheme, the court would not entertain Decastro’s challenge to it because he had chosen not to apply for a New York permit. The court’s avoidance of that critical issue, however, did not last long.

“Proper Cause” in New York

In November the Second Circuit decided what appears to be a test case designed to target a core gun-ownership restriction in New York. At issue in Kachalsky v. County of Westchester was the New York statutory provision (section 400.2(2)(f) of the Penal Law) that, beyond a narrow category of workers and locations, authorizes concealed gun permits only for those who can demonstrate “proper cause.” Though not defined by the statute, courts have construed “proper cause” to require that the applicant “demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.”

Asserting only a general desire to be able to carry a concealed weapon to protect themselves while in public, the plaintiffs (including a transgender female) applied for concealed-weapons permits, were denied, and sued. They contended the “proper cause” standard impermissibly burdened their Second Amendment rights. In a decision authored by Judge Richard Wesley, the Second Circuit upheld the statute.

At the outset, the court recognized that Heller and McDonald dealt only with restrictions on gun possession in the home, but it nonetheless assumed that Second Amendment protections extend to some degree beyond the home. And distinguishing the federal importation ban in Decastro, the court held that New York’s concealed-weapons licensing scheme, when combined with the state’s general prohibition of unconcealed weapons, substantially burdened Second Amendment rights so as to trigger some form heightened scrutiny.

To determine whether the specific scrutiny would be “strict” or “intermediate,” the Second Circuit then surveyed the long history of gun regulation in this country and concluded that “state regulation of firearms in public was enshrined within the scope of the Second Amendment when it was adopted.” Given this, the court held that the less demanding intermediate scrutiny was appropriate and that the “proper cause” requirement “passes constitutional muster if it is substantially related to the achievement of an important governmental interest.” It then readily found that the state had an important interest in maintaining public safety and preventing crime and further that the 100-year history behind New York’s concealed-weapons licensing scheme, along with the original legislative history supporting that scheme, demonstrated a sufficient relationship to those interests.

Just as significant as the Second Circuit’s rejection of this challenge is the Court’s effort to separate Second Amendment doctrine from other constitutional guarantees, including the First Amendment. For instance, at the outset of its analysis it rejected the plaintiffs’ effort to invoke First Amendment prior restraint doctrine. As Judge Wesley observed, freely importing First Amendment doctrine into the Second Amendment context “would be an incautious equation of the two amendments and could well result in the erosion of hard-won First Amendment rights.” And a later argument relying on other constitutional protections drew the following retort: “This is a crude comparison and highlights Plaintiffs’ misunderstanding of the Second Amendment.” On this latter point, the Court observed (my emphasis), “States have long chosen to regulate the right to bear arms because of the risks posed by its exercise.”

Domicile vs. Residence

The Second Circuit’s most recent Second Amendment decision came just last week. At issue in Osterweil v. Bartlett was the question whether New York can deny a gun permit to a person who owns a residence in New York but whose legal domicile is in another state. The plaintiff Alfred Osterweil owns a house in Summit, New York, had applied for a gun permit, then relocated to Louisiana while retaining his New York house, and subsequently had been denied a permit on the grounds that New York law required an applicant’s domicile to be New York.

Perhaps sensing that foreign domicile alone might not be sufficient under the Second Amendment to deny a permit for a gun in the home of a New York resident, the Attorney General’s office wanted no part of this dispute and urged the Second Circuit to interpret the New York law as requiring only residence. Taking express note of the Newtown shooting, the court, in a decision written by retired Supreme Court Justice Sandra Day O’Connor, declined to do so. Rather, given what it deemed to be the importance of gun regulation and the uncertainly about the statute, the Second Circuit certified to the New York Court of Appeals the issue of what exactly the New York law required.

Behind the Scenes

These three Second Circuit cases are illustrative of litigation all around the country being brought in the aftermath of Heller and McDonald. For gun-control advocates, the outcomes are extraordinarily important, though the situation will remain extremely unsettled until the Supreme Court issues more rulings. Likewise, for those who have invested much in the Bill of Rights, these are tumultuous times as the courts wrestle with the issue of whether Second Amendment doctrine will develop as free-standing doctrine or whether it will become inextricably entwined with doctrine from other amendments, most notably from the First Amendment.

Not surprisingly, these new Second Amendment cases are not arising organically but instead in many instances appear to be test cases. For instance, the lawyer who brought Kachalsky recently succeeded in getting the Seventh Circuit to invalidate Illinois’s ban on carrying weapons in public, and on January 8 he asked the Supreme Court to review the Second Circuit’s Kachalsky ruling about New York’s concealed-weapons scheme. Meanwhile, the seemingly sleepy issue of domicile vs. residence in Osterweil was presented to the Second Circuit by none other than Paul Clement, the former Solicitor General under the recent President Bush and the lawyer on such high profile matters as the Affordable Care Act and the Defense of Marriage Act (DOMA), scheduled to be argued in the Supreme Court at the end of March. How this Second Amendment intrigue plays out will bear close watching.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.