The U.S. Supreme Court’s Heller Decision on the Second Amendment and the Right to Bear Arms--One Week Later

I say because as one reads the opinion Justice Scalia engages in a very extensive historical review of the understanding of the 2nd Amendment from the early stages of the Common Law through the adoption of the 14th Amendment. That historical understanding was very important because in order for Mr. Heller to obtain the relief sought he brought it under 42 USC 1983. The District of Columbia is considered a State for these purposes (See 28 USC 1343) 42 USC 1983 is a Reconstruction Era statute and it provides:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

As such, for Heller to obtain the relief sought he had to bring himself with Section 1983. The only way to do that was to show that the Second Amendment was a “privilege and immunity” of US Citizenship. Section 1983 is predicated under Congress’s power both in controlling DC and other federal territories but also by virtue of Section 5 of the 14th Amendment.

While the 14th Amendment does refer to “Due Process” it also – and many would argue (including myself) that the more important provision is the one that states all persons born in the US are naturalized here are US Citizens and that Section 1, Clause 2 of the 14th Amendment of the United States Constitution known as the Privileges or Immunities Clause was strengthened. It states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

Justice Scalia to have the Court grant the relief of registration (arguably the case could have been decided on statutory grounds in that Congress never authorized DC to do what it did), Justice Scalia had to show that there was a right granted by the Constitution.

In doing so, he put gun rights in the contexts of what rights African Americans had prior to the Civil War and what rights they gained as a result of the 13th and 14th Amendments. In the course of the opinion he stated:

“In the aftermath of the Civil War, there was an outpouring of discussion of the Second Amendment in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves. See generally S. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876 (1998) (hereinafter Halbrook); Brief for Institute for Justice as Amicus Curiae. Since those discussions took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources. Yet those born and educated in the early 19th century faced a widespread effort to limit arms ownership by a large number of citizens; their understanding of the origins and continuing significance of the Amendment is instructive.

“Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks' constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia. A Report of the Commission of the Freedmen's Bureau in 1866 stated plainly: "[T]he civil law [of Kentucky] prohibits the colored man from bearing arms. . . . Their arms are taken from them by the civil authorities.... Thus, the right of the people to keep and bear arms as provided in the Constitution is infringed." H. R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 233, 236. A joint congressional Report decried:

"in some parts of [South Carolina], armed parties are, without proper authority, engaged in seizing all fire-arms found in the hands of the freemen. Such conduct is in clear and direct violation of their personal rights as guaranteed by the Constitution of the United States, which declares that 'the right of the people to keep and bear arms shall not be infringed.' The freedmen of South Carolina have shown by their peaceful and orderly conduct that they can safely be trusted with fire-arms, and they need them to kill game for subsistence, and to protect their crops from destruction by birds and animals." Joint Comm. on Reconstruction, H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 2, p. 229 (1866) (Proposed Circular of Brigadier General R. Saxton).

“The view expressed in these statements was widely reported and was apparently widely held. For example, an editorial in The Loyal Georgian (Augusta) on February 3, 1866, assured blacks that "[a]ll men, without distinction of color, have the right to keep and bear arms to defend their homes, families or themselves." Halbrook 19.

“Congress enacted the Freedmen's Bureau Act on July 16, 1866. Section 14 stated:

"[T]he right ... to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens ... without respect to race or color, or previous condition of slavery... . " 14 Stat. 176-177.

“The understanding that the Second Amendment gave freed blacks the right to keep and bear arms was reflected in congressional discussion of the bill, with even an opponent of it saying that the founding generation "were for every man bearing his arms about him and keeping them in his house, his castle, for his own defense." Cong. Globe, 39th Cong., 1st Sess., 362, 371 (1866) (Sen. Davis).

“Similar discussion attended the passage of the Civil Rights Act of 1871 and the Fourteenth Amendment. For example, Representative Butler said of the Act: "Section eight is intended to enforce the well-known constitutional provision guaranteeing the right of the citizen to 'keep and bear arms,' and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same." H. R. Rep. No. 37, 41st Cong., 3d Sess., pp. 7-8 (1871). With respect to the proposed Amendment, Senator Pomeroy described as one of the three "indispensable" "safeguards of liberty ... under the Constitution" a man's "right to bear arms for the defense of himself and family and his homestead." Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative Nye thought the Fourteenth Amendment unnecessary because "[a]s citizens of the United States [blacks] have equal right to protection, and to keep and bear arms for self-defense." Id., at 1073 (1866).

“It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.

As such, Justice Scalia in effect endorsed for a Conservative Majority the “all out” or “almost all out” incorporation view of the 14th Amendment based on the “privileges and immunities” clause first articulated in Justice Hugo Black’s dissent (joined by Justices William O. Douglas, Frank Murphy and Wiley Rutledge) in Adamson v. California, 332 U.S. 46 (1947). Indeed, in the key passage of his dissent Justice Black stated:

"For this reason, I am attaching to this dissent, an appendix which contains a resume , by no means complete, of the Amendment's history. In my judgment that history conclusively demonstrates that the language of the first section of the Fourteenth Amendment, taken as a whole, was thought by those responsible for its submission to the people, and by those who opposed its submission, sufficiently explicit to guarantee that thereafter no state could deprive its citizens of the privileges and protections of the Bill of Rights. 332 U.S.at 74-75."

The appendix attached to Justice Black’s dissent stated as follows in pertinent part:

“Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be-for they are not and cannot be fully defined in their entire extent and precise nature-to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments. 332 U.S. at 105-106

While the holding in Adamson itself has been overruled, given the Court’s understandable disdain for “substantive Due Process” albeit it is a view Justice Kennedy approves of, the in a very real sense Heller affirms the views of Hugo Black. That indeed is remarkable. While incorporation was reserved as an issue in Heller, the fact that it was a 1983 action in my view ends the discussion.

That Scalia took this route shows that he followed the advice of his close ally on the Court when he first arrived there: Justice William O. Brennan. Justice Brennan was the intellectual muscle of the Warren Court. Scalia did not dispute in his Charlie Rose interview Justice Brennan’s abiding influence on him.

The effect of Heller is to reinvigorate the “privileges and immunities” clause which Justice Thomas in effect called for in his concurruing and dissenting opinion in Saenz v. Roe, 526 U.S. 489 (1999). In doing so, Scalia and Thomas stand on the shoulders of Hugo Black, Bill Douglas, Frank Murphy and Wiley Rutledge.

In sum, Justice Scalia to have the Court grant the relief of registration based on “privileges and immunities grounds” (arguably the case could have been decided on statutory grounds in that Congress never authorized DC to do what it did), Justice Scalia had to show that there was a right granted by the Constitution. In doing so, he put gun rights in the contexts of what rights African Americans had prior to the Civil War and what rights they gained as a result of the 13th and 14th Amendments.

This has not been lost on African American commentators across the board. On the McLaughlin Group last week, Michelle Bernard who while she is the head of the Independent Women’s Forum is also a Big Barack Obama fan stated the following:

“MS. BERNARD: John, here's what's fascinating about the Supreme Court's analysis in this decision. When you talk about the individual, most of the early analysis in this case dealt with the treatment of slaves before the Civil War and with freed slaves after the Civil War, which I find absolutely fascinating, because the way that our ancestors was treated is what gave us the Supreme Court's ruling yesterday.

“And when they talked about individuals, there was a question, post-Civil War, about whether or not freed slaves, men in particular, would have the right to bear arms, as other individuals did. And from that, Justice Scalia and the majority of the court deigned that individuals unconnected with militias always had the right to bear arms.”

Similar comments have been made by other African American commentators across a wide ideological spectrum. Whatever the motives for how the opinion was written, the fact is that it is a published opinion and makes clear that this individual right that 75% +/- feel is their right was created on the shoulders of African Americans. The political implications of this are far reaching.

In terms of the litigation situation post Heller, as was noted in this week’s Capitol Weekly, Justice Scalia’s opinion in many respects was a preemptive strike against any number of suits being filed. The suits that have been filed have been limited and have been referred to as “low hanging fruit”. In fact, there are 4 suits in Illinois and the San Francisco Housing Authority suit.

There are several additional factors that add to the paucity of litigation to date.

Aside from the preemptive strikes in the opinion itself, the first barrier to suing is “standing”. Standing is who can sue and the mechanics of creating a “case or controversy” which is a predicate constitutionally for federal courts entertaining the consideration of any case on the merits. Because of the “standing rules” constructed by the United States Supreme Court in the last 30 years at the behest of conservative legal think tanks, it was very difficult to find the right type of plaintiff to bring a gun rights suit.

People forget that there were originally six plaintiffs in Heller and only Dick Heller who because he was a special police officer and therefore could carry a gun in public was the only one who was able to take his revolver to the DC Police Department of present it for registration. As such, finding the right plaintiff with standing is difficult.

The next issue is financial resources. Assuming that you have the ideal plaintiff, actually bringing these types of lawsuits by private parties is expensive and given past experience advocacy groups get very nervous over “neophyte” lawyers bringing suits. (While Public Defenders do have public resources, they are typically defending persons who have greater issues than simple handgun possession in the residence sans anything else.)

As I stated in a prior article, based on my experience from DC, persons in DC who are prosecuted for gun charges have a slew of issues that do not make them ideal test cases. The NRA in fact tried to derail the Heller suit through a series of means (including its own suit – Seegars) that are in the public domain and hence not a secret.

It is only a fortuitous situation which resulted in Heller having the financial support to bring suit - in the form of Bob Levy. Had Bob Levy not bankrolled the suit it would not have occurred – but I doubt that even Bob would have gone as far as he did if there were not 42 USC 1983 remedies available.

Here again an irony exists. In 1976, President Ford at the behest of Democrats in Congress – and over Reaganite type objections - signed into law “The Civil Rights Attorney's Fees Awards Act of 1976” by enacting 42 USC 1988(b) and (c). The reach of 42 USC 1988 has been extended over time.

Section 1988 in effect creates a discretionary “losers pays” system for awarding attorneys fees in 42 USC 1983 actions. The United States Supreme Court in Hutto v. Finney, 437 U.S. 678 (1978) in an opinion by Justice Stevens unanimously held that Congress had the power to enact this statute and waive whatever immunity states and localities might otherwise have under the 11th Amendment by virtue of Section 5 of the 14th Amendment.

While Section 1988 allows for “attorneys fees”, in order to obtain them the United States Supreme Court has imposed a series of limitations to the attainment of that right. While the Supreme Court has made clear that barring some unusual circumstance (See: Hensley v. Eckerhart, 461 U.S. 424, 429-430 (1983), a “prevailing party” should get their attorney’s fees, obtaining them in fact is often not easy.

What makes a person a prevailing party often involves the degree of success on the merits which means that that litigant has to actually obtain a judgment on the merits that awards affirmative relief – after a contested proceeding or via a consent decree. Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001).

Buckhannon rejected – incorrectly in my view - the “catalyst theory” which holds that attorney fees may be awarded even when litigation does not result in a judicial resolution if the defendant changes its behavior substantially because of, and in the manner sought by, the litigation. California fortunately continues to follow the Catalyst Theory by virtue of CCP 1021.5. See: Graham v. DaimlerChrysler Corporation, (2004) 34 Cal. 4th 553.

Because of Buckhannon, unless an attorney has substantial resources behind him or her it reduces the likelihood of even filing suit because the hazards of litigation. A lawyer could file suit on a worthy claim, the state actor cries uncle and there is no guarantee that the attorney will recoup substantial attorneys’ fees unless he or she presses the case to a signed judgment.

Secondly, even if the case does result in a judgment, the amount is based typically on an hourly rate which is subject to wide district court latitude. The various United States District Courts are filled with Republican appointees who are very reluctant to grant true and full 42 USC 1988 fees. Hopefully, some of the plaintiffs in these new suits will recognize this fact and join to have a new Congress improve the implementation of Section 1988.

Because of these legal limitations on the financing of suits and the need for local counsel (an attorney admitted to practice law in DC cannot file suit in Illinois without either have licensed in state co-counsel or himself being admitted) lawyers are generally very careful in what they seek.

Indeed, a number of neo-cons – Charles Krauthammer for one – were very nervous about the Court’s opinion and agreed with Justice Stevens’ dissent because there is sweeping civil liberties language in the opinion.

Justice Stevens’ was a Ford appointee to the Court and as such is not what I would call a true civil libertarian.

Since the mid 1980's Irwin Nowick has worked for the California State Assembly and State Senate on a plethora of policy issues, most notably firearms legislation. He has been described as "The Assembly's resident genius" by a former Speaker of the Assembly and is seen frequently in the Capitol hallways and offices assisting legislators in drafting and amending pending legislation.