The Heller Gun Decision Week 20--Why Gun Rights Advocates Should Be Rooting For Prop 8 Foes to Win in Court

As to what Obama may do, what you may see are certain administrative things being done which would not affect private individuals. One concept out there is that when a gun dealer takes possession of a gun he or she notifies the initial manufacturer or importer that he or she has it to make tracing easier. Technically, BATF might be able to do this now do this now per the implicit holding of the Fourth Circuit in RSM, Inc. v. Buckles, 254 F.3d 61 (4th. Cir. 2001). Almost all gun dealers now have Internet and email capability so this is not a major imposition. It does help on tracing WITHOUT creating a registration system.

Since I was asked, I wanted to note recent developments in the New York State Senate. That body has been Republican since 1966 but because of demographic changes Democrats have been chipping away at the Republican Majority over the last 3 cycles – picking up seats all over the place – but particularly Upstate and in the inner suburbs. Upstate Democrats in fact are the key swing players.

Last Tuesday, Democrats won at least two seats to take a 32-29-1 lead. The remaining outstanding seat is held by noted Senator Frank Padavan (R-Queens). Padavan is probably the most anti-gun Republican in the NY State Senate. Padavan was challenged for his seat by New York City Councilman James F. Gennaro. In unofficial results, Padavan was leading Gennaro, by 723 votes but it dropped to 502 votes today after the voting machines were re-canvassed. But there about 8,000 absentee and other paper ballots yet to be counted with the attendant concerns will not be completed for at least a week.

While the Democrats won at least 2 – and possibly 3 additional seats, 3 Democrats who would be necessary to actually organize the Senate [even if Gennaro was elected] will apparently not vote to elect Minority Leader Malcolm Smith, Jr. to lead – and organize – the State Senate. The three renegades [Carl Kruger of Brooklyn, Ruben Diaz Sr. of the Bronx, and Pedro Espada Jr. of the Bronx] have a number of issues with Smith. While the rest of the Senate Democratic Caucus [including all the Upstate Gun Rights Democrats, which suggests that agreement and understandings has been reached] has reaffirmed its support for Smith, the three holdouts [from safe seats] want assurances as to a number of issues – including no adoption of same-sex marriage without a statewide referendum. I am not sure that such a referendum procedure even exists in New York State.

The Troika met with Governor Paterson today to try to reach an agreement and instead it turned into a “he said, he said” dispute. What the Troika’s exact strategy or end game is escapes most people but it may well result in electing an Upstate Democrat from a Pro-Gun area as leader. But, who that might be is unclear but

On Proposition 8, I voted No on that measure though I know a number of people who voted yes who are Democrats. The reason I voted No was multifaceted but it came down to the fact that if same sex marriage was so bad, why did the proponents of 8 disclaim any intention to disallow or void the 11,000 to 17,000 marriages that had occurred during the period when same sex marriage existed in this state? There was bluntly no reason to disallow these marriages so why ban future ones based solely on sexual orientation.

As the California Supreme Court noted in In re Marriage Cases, (2008) 43 Cal.4th 757, in the mid-1970's, several same-sex couples sought marriage licenses from county clerks in a number of California counties, relying in part upon the 1971 change in the language of former Civil Code § 4101(a). All of the county clerks who were approached by these same-sex couples denied them applications, but in order to eliminate any uncertainty as to whether the then existing California statutes authorized marriage between two persons of the same sex, legislation was introduced in 1977 at the request of the County Clerks' Association of California to amend the Civil Code to clarify that the applicable California statutes authorized marriage only between a man and a woman.

The 1977 legislation added the phrase “between a man and a woman” to the first sentence of former section 4100, so that the sentence read: “Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary.” The measure also revised the language of former section 4101 to reintroduce the references to gender that had been eliminated in 1971. Those provisions were carried over into the Family Code and it is not in dispute that at the time that the Marriage Cases were decided, the only marriages that lawfully could be performed in California were that of opposite-sex couples.

As a matter of state and federal constitutional law, statutory classifications must be upheld against an equal protection challenge if the classifications are rationally related to a legitimate government purpose. However, this rule does not apply to classifications that disadvantage a "suspect class" or infringe upon the exercise of "fundamental rights." Clark v. Jeter, 486 U.S. 456, 461 (1988); Plyler v. Doe, 457 U.S. 202, 216-217 (1982). As a matter of federal law, the United States Supreme Court has set forth the following as “fundamental rights”: right of a uniquely private nature, the right to vote); the right of interstate travel, rights guaranteed by the First Amendment, right to procreate. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312 fn. 3 (1976). Heller probably added as a fundamental right the right to acquire and possess conventional firearms for self defense. In addition, a classification based on one of the following basis is suspect: alienage (Graham v. Richardson, 403 U.S. 365 (1971)); race (McLaughlin v. Florida, 379 U.S. 184 (1964); ancestry (Oyama v. California, 332 U.S. 633 (1948)), religion (City of New Orleans v .Dukes, 427 U.S. 297, 303 (1976)), and arguably sex (Frontiero v. Richardson, 411 U.S. 677 (1973)). In either of these two situations the courts must apply "strict scrutiny," and the legislative action can only be upheld upon the government's showing that the action is narrowly or suitably tailored to meet a compelling government interest. Plyler, 457 U.S. at 216-17.

There is also a third category of review that has developed to the rigid two-tiered constitutional framework by which courts review the constitutionality of government action. A "heightened" level of scrutiny, otherwise known as "intermediate scrutiny," is triggered when the challenged action creates a classification which has been subjected to a higher degree of scrutiny than the traditional and deferential rational basis test, but which ha[s] not [yet] been deemed to involve suspect classes or fundamental rights. This middle-tier scrutiny may be implicated to review a "quasi-suspect" classification. See, e.g.: Lawrence v. Texas, 539 U.S. 558, 580(2003) (O'Connor, J., concurring); Romer v. Evans, 517 U.S. 620 (1996); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440-442 (1985); Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985); Williams v. Vermont, 472 U.S. 14 (1985); Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869 (1985); Zobel v. Williams, 457 U.S. 55 (1982). In order to survive this intermediate level of scrutiny, the statute in question must serve important governmental objectives and must be substantially related to the achievement of those objectives. The United States Supreme Court has generally applied intermediate scrutiny to sex-based governmental action. There are other areas, however, to which the Supreme Court has applied this intermediate level of scrutiny. Those specific areas triggering heightened scrutiny will be discussed infra.

California Constitutional law has generally followed federal precedent but due to unique state Constitutional provisions, the number of fundamental rights is broader than federal law and the nature of suspect classifications is also broader. Sex discrimination is explicitly banned by both Article 1, § 8 and Article 1, § 31.

It is not at all clear that – despite the California Supreme Court’s decision in Perez v. Sharp, (1948) 32 Cal.2d 711 or in the Marriage cases themselves that the right to marry is fundamental. Perez, which found that California's statutory provisions prohibiting interracial marriages were inconsistent with the equal protection clause [Article 1, § 7] of the California Constitution is best described as a suspect classification case. However, it is clear that as a matter of State [as opposed to federal] constitutional law for many years any classification based upon sexual orientation – as the Supreme Court noted in the Marriage Cases is suspect. 43 Cal.4th at840-842. Given that fact, a compelling state interest must exist to prohibit it. In my mind, that compelling state interest did not exist.

If there was any proof that the “compelling interest” did not exist, that proof is shown by the fact that no one was purporting to invalidate the 11,000 to 17,000 or so same sex couples who where married after the California Supreme Court ruled that the statutory ban on same sex marriage was invalid but prior to the Constitutional ban on same sex marriage being enacted in Proposition 8. Indeed, not one person has noted one terrible thing that has happened because committed Gay couples are married. Both Attorney General Jerry Brown and the proponents of Proposition 8 take the position that Proposition 8 does not affect existing marriages.

The non-retrospective effect of Proposition 8 as evidenced by its supporters is consistent with long standing case law in this state that a retrospective law -one which affects rights, obligations, acts, transactions and conditions which are performed or exist prior to the adoption of the statute – will not be found absent a clear indication that was the enactor’s intent. Aetna Casualty & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 393 [extensive citation of case law]. The reason why both Jerry Brown and the Yes on 8 people are taking the position they are is clear. Given that a marriage is a vested property right, removal of marriage benefits would well constitute a “takings” which would require the payment of just compensation – assuming that the predicate of “public purposes” can even be found. The non-retroactive effect of Proposition 8 resolves that issue.

However, the effect of Proposition 8 – and this is unlike in other states where same sex marriages never took place – where future same sex marriages are banned but current ones are allowed which raises the issue of “chronological classifications” or grandfather clause issues in terms of “equal protection” analysis, which cannot be justified in my view.

On the “grandfather front” there is very little case law but it should create some very interesting dynamics. While much of the opposition to Proposition 8 is based on the fact that it is a defacto constitutional revision which may well be the case because it neuters fundamental constitutional rights vis-à-vis equal protection analysis, a number of people are starting to look at the “equal protection” issue in terms of chronological classifications or “grandfather” clauses.

At the federal level, “grandfather” clause litigation has been raised in a multiplicity of settings – with a lot of litigation in the firearms area. The term “grandfather in” actually originated in clauses in late 19th century legislation and constitutional amendments passed by Southern states' creating new restrictions on voter registration in an attempt to limit the franchise in terms of literacy clauses. It allowed men to vote, even if they did not meet new requirements, based on their having ancestors who had the right to vote before the Civil War - effectively limiting the exemption to white men.

The United States Supreme Court found such provisions as to voting rights unconstitutional in Guinn v. United States, 238 U.S. 347 (1915) as violative of the 15th Amendment banning voting discrimination on the account of race. As a result of Guinn, States had to stop using the grandfather clause to provide exemption to literacy own but used other means. The United States Supreme Court struck down the statute which Oklahoma had passed to replace the grandfather clause in Lane v. Wilson, 307 U.S. 268 ( 1939). The Court concluded that "the means chosen as substitutes for the invalidated 'grandfather clause' were themselves invalid under the Fifteenth Amendment. They operated unfairly against the very class on whose behalf the protection of the Constitution was here successfully invoked." 307 U.S. at 277

At the same time, the United States Supreme Court upheld the constitutionality of a "grandfather clauses" in a variety of settings See: United States v. Maryland Savings-Share Insurance Corp., 400 U.S. 4 (1970). In Maryland Savings Share Insurance Corp, the Court stated:

“The fact that Congress enacts a statute containing a ‘grandfather clause,’ which exempts from the general income tax certain corporations organized prior to a specified date, does not of itself indicate that Congress has made an arbitrary classification. Cf. Stanley v. Public Utilities Comm'n, 295 U.S. 76 (1935); Sperry & Hutchinson Co. v. Rhodes, 220 U.S. 502 (1911); Watson v. Maryland, 218 U.S. 173 (1910); Sampere v. New Orleans, 166 La. 776, 117 So. 827 (1928), aff'd per curiam, 279 U.S. 812 (1929). Normally, a legislative classification will not be set aside if any state of facts rationally justifying it is demonstrated to or perceived by the courts. McDonald v. Board of Election Comm'rs, 394 U.S. 802, 809 (1969); McGowan v. Maryland, 366 U.S. 420, 426 (1961); Standard Oil Co. v. City of Marysville, 279 U.S. 582, 586 -587 (1929). See also Watson v. Maryland, supra, at 178. Here the legislative history of H. R. 3297 affirmatively discloses that Congress had a rational basis for declining in 1963 to broaden the exemption by extending the cutoff date of 501 (c) (14) (B). Just as a State may provide that after a specified date newly established common carriers must obtain state approval before entering into business so as to prevent proliferation of such carriers and excessive use of the State's highways, see Stanley v. Public Utilities Comm'n, supra, similarly Congress does not exceed its power to tax nor does it violate the Fifth Amendment when it refuses to exempt from tax newly formed corporations, the multiplication of which might burden otherwise valid federal programs.” 400 U.S. at 6

Maryland Savings Share Insurance Corp. cited Sperry & Hutchinson co. v. Rhodes, 220 U.S. 502 (1911) – an opinion authored by Justice Holmes. Sperry involved a challenge to a New York statute which provided that after a certain date, a person who makes such use of the name, portrait, or picture of any living person a misdemeanor, and gives this action. It was is argued that as before the statute a person could not prevent the use of her portrait by one who took and owned it to deny that use now is to deprive the owner of his property without due process of law. In upholding the classification, Justice Holmes observed that the 14th Amendment does not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time. 220 U.S. at 505.

The ruling in Sperry has been used repeatedly to uphold “grandfather clauses” against attack – save in a compelling state interest context. As the United States Supreme Court has noted, grandfather clauses almost always favor established residents or businesses or ownerships or relationships over newer ones. See, e.g. City of New Orleans v. Dukes, 427 U.S. 297, 303-305. However, the federal courts have held that protecting the interests of those who have relied on prior laws "is a matter of simple fairness" and a legitimate governmental purpose. City of New Orleans v. Dukes, supra.; Katzenbach v. Morgan, 384 U.S. 641, 657 (1966); Williamson v. Lee Optical Co., 348 U.S. 483, 488-489 (1955). See also: Sullivan v. Hamilton County Board of Health, 802 N.E.2d 698, 7`` (Ohio App. 1st. Dist. 2003) [It should be noted that a number of State Constitution’s have unique equal protection “privileges and immunities” clauses that subject “grandfathering” to heightened review. See: Ventenbergs v. City of Seattle, 178 P.3d 960, 970-971 (Wash. 2008), Sanders, J. dissenting noting that at least 16 other states besides Washington have similar proscriptions on privileges and immunities, citing Ala. Const. art. I, § 22; Ariz. Const. art. II, § 13; Ark. Const. art. II, § 18; Colo. Const. art. V, § 25; Conn. Const. art. I, § 1; Ind. Const. art. I, § 23; Iowa Const. art. I, § 6; Ky. Const. Bill of Rights § 3; Mass. Const. Pt. 1 (Declaration of Rights), art. VI; N.C. Const. art. I, § 32; N.D. Const. art. I, § 21; Or. Const. art. I, § 20; S.C. Const. art. I, § 3; S.D. Const. art. VI, § 18; Tex. Const. art. I, § 3; Va. Const. art. I, § 4.])

In the firearms area, a number of statutory regulations in effect allow current possessors to keep what they have by a registration or other requirement but have the effect of severely limiting new acquisitions or imposing restrictions beyond new possessors. Pre Heller, these “grandfather restrictions” where generally upheld. For instance, in Sklar v. Byrne, 727 F.2d 633 (7th Cir. 1984) which dealt with a multi faceted challenge to the constitutionality of Chicago's laws regulating the possession and registration of handguns, Sklar contended that the City had violated the equal protection clause of the fourteenth amendment by discriminating against persons who have moved or will move to Chicago after the effective date of the ordinance, April 10, 1982.

By way of background, on March 19, 1982, the Chicago City Council passed an ordinance amending the Municipal Code of the City of Chicago which required that all firearms in Chicago be registered with the city. The ordinance also classified some firearms as "unregisterable" thus making illegal their possession in the City of Chicago. Among the categories of "unregisterable" firearms are "Handguns, except those validly registered to a current owner in the City of Chicago prior to the effective date of the ordinance” such that it acted as a freeze and a grandfathering in. The ordinance limited the legal supply of handguns in the City of Chicago to those lawfully registered with the city on the effective date and prevents any Chicago citizen who did not own a registered handgun on the effective date from lawfully purchasing, registering and possessing a handgun in Chicago.

The Seventh Circuit held that the standard of review was the rational relationship test, i.e., was the means chosen a rational means to further a legitimate state interest. The Seventh Circuit noted that Sklar’s strongest argument in favor of compelling state interest review was that the ordinance disadvantaged new residents of Chicago and that this classification is suspect because it depends upon residence and implicates the federally protected right to travel. It noted that Sklar correctly asserts that courts have in some cases applied a heightened level of scrutiny where the state has created rights and limited their availability to individuals depending in part upon the duration of their residence. The reason being that durational residence requirements are subject to heightened scrutiny because they may penalize exercise of the right to travel, which is a personal right fundamental to the Federal system of government. 727 F.2d at 639.

The Seventh Circuit noted that the classification in the Chicago ordinance was not a durational residence requirement, and the ordinance's effect on travel is only indirect. The classification scheme in the ordinance did not, however, single out new residents of Chicago for discriminatory treatment. Specifically, the Court stated:

“The handgun provisions of the ordinance amount to a familiar grandfather clause. Rather than ban all private possession of handguns, the city enacted an ordinance which said, in effect, ‘So much and no more.’ Those who already owned registered handguns could keep them (and they may not sell the handguns in Chicago), but additional handguns in the city were prohibited. The grandfather clause thus has only an indirect effect on the freedom to travel, as new residents are merely one group among several who do not benefit from the clause. New residents have not been singled out for discriminatory treatment.

“Grandfather provisions always grant preferences to a special group, and newcomers or those who never arrive in the favored area rarely share the benefits. We recognize that such clauses create a risk of political exploitation working to the disadvantage of unfavored classes, and courts must certainly scrutinize grandfather clauses to learn whether they are masks for exploitation or invidious discrimination. (Citations omitted)

“However, in challenging a grandfather clause such as that incorporated in the handgun ordinance here, plaintiffs cannot invoke compelling governmental interest scrutiny by showing only that new residents will not share its benefits. Grandfather clauses almost always favor established residents or businesses over newer ones. Where the purpose of the grandfather clause is the protection of reliance interests, only established residents or businesses will have relied on prior laws and thus will have reliance interests to protect.

“If compelling governmental interest scrutiny were appropriate based merely on a showing that newer residents would not benefit from the provision, then virtually any grandfather clause would be vulnerable under that exacting standard. Few would be likely to withstand scrutiny. Yet grandfather provisions are a familiar means in the law for protecting reliance interests, and we are reluctant to unsettle these provisions by applying an unnecessarily demanding standard of review. Where plaintiffs can show that a grandfather provision impinges on a fundamental personal right (other than through its indirect effects on those who travel), or that the provision is a substitute for a suspect form of discrimination, courts should apply the compelling governmental interest standard. In this case, however, the provision does not impinge upon fundamental rights, nor is it a subtle mask for invidious discrimination. Under the equal protection clause, we therefore ask whether the challenged classification rationally furthers a legitimate governmental purpose. See City of New Orleans v. Dukes, supra 427 U.S. at 303.” 727 F.2d at 639

The Seventh Circuit noted the issue was whether the purpose of protecting these reliance interests is a legitimate one for the government. The Court noted:

“The purpose of protecting those who relied on prior laws-and only to the extent they relied on prior law-is a matter of simple fairness. Governments enact laws which invite citizens to invest their money and time and to arrange their affairs in reliance upon those laws. Laws are not immutable, but we can see no reason to prohibit governments from protecting the interests of those who rely upon prior law. The Supreme Court approved the legitimacy of reliance interests in City of New Orleans v. Dukes, supra, 427 U.S. at 305, where the court upheld a local ordinance protecting older businesses in a city by closing down their newer competitors. See also Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 467-68 (1981) (upholding temporary grandfather provisions protecting reliance interests and preventing economic dislocations); Hennessey v. National Collegiate Athletic Ass'n, 564 F.2d 1136, 1144-45 (5th Cir.1977) (upholding grace period protecting reliance interests and preventing unfairness of NCAA by-law). This court has also noted the legitimacy of reliance interests in an equal protection challenge to a grandfather clause. Trafelet v. Thompson, 594 F.2d 623, 631 & n. 11 (7th Cir.) (pension provisions for state judges), cert. denied, 444 U.S. 906.” 727 F.2d at 641-642.

However, not all grandfather systems will be upheld as witnessed by Peoples Rights Organization, Inc. v. City of Columbus, 152 F.3d 522 (6th.Cir.. 1998). By way of background, in 1994, the Sixth Circuit invalidated a Columbus Ohio ordinance that banned assault weapons. Springfield Armory, Inc. v. City of Columbus, 29 F.3d 250, 254 (6th Cir.1994). The ordinance defined an "assault weapon" as any one of thirty-four specific rifles, three specific shotguns, nine specific pistols, or "[o]ther models by the same manufacturer with the same action design that have slight modifications or enhancements." The Court found that the ordinance is fundamentally irrational and impossible to apply consistently by the buying public, the sportsman, the law enforcement officer, the prosecutor or the judge. 29 F.3d at 252.

The Sixth Circuit concluded: "The ordinance purports to define 'assault weapons' but in fact it bans only an arbitrary and ill-defined subset of these weapons without providing any explanation for its selections." Id. Following that decision, Columbus amended its ordinance to adopt a generic definition of what was prohibited. The ordinance contained two grandfather clauses which exempt certain firearms and magazines from the ordinance's provisions. One section exempted any "assault weapon" that was lawfully possessed and registered pursuant to former Columbus City Code in 1989. Another exempted a "large capacity magazine" which, among other things, belongs to or is possessed by the owner of a firearm that is registered under the National Firearms Act, 26 U.S.C. §§ 5801-71.

The second set of litigation involves a challenge to the amended Columbus ordinance. The District Court struck down portions of the generic definition but upheld the grandfather provisions. The Sixth Circuit upheld the District Court save that as to the the grandfather provisions it upheld one and struck down another.

The Sixth Circuit as to the pre 1989 registration provision was invalidated. In so holding, the Sixth Circuit noted:

“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction, the equal protection of the laws.’ In Nordlinger v. Hahn, 505 U.S. 1, 10 (1992), the Supreme Court explained that ‘[t]he Equal Protection Clause does not forbid classifications. It simply keeps governmental decision makers from treating differently persons who are in all relevant respects alike.’ If legislation does not burden a fundamental right or target a suspect classification, it will withstand constitutional scrutiny so long as it bears a rational relationship to a legitimate state interest. Vacco v. Quill, 521 U.S. 793 (1997); Romer v. Evans, 517 U.S. 620, 631 (1996).

“Section 2323.31(B)(3) contains an exception to the prohibition on assault weapons in section 2323.31(A). Section 2323.31(B)(3) exempts from prosecution ‘any person who lawfully possessed an assault weapon and who registered that assault weapon pursuant to former Columbus City Codes Section 2323.05 in 1989.’ Plaintiffs argue that ‘[t]his creates an irrational discrimination against plaintiffs and in favor of persons who did register their firearms because they speculated that their firearms were assault weapons ... capable of registration under the 1989 definitions.’

“The City contends that the objective of the provision is to protect the ownership interests of those persons who possessed proscribed weapons prior to Columbus's attempt to ban assault weapons in 1989. To be sure, the governmental interest at stake here is clearly legitimate. As the Seventh Circuit has explained: ‘Governments enact laws which invite citizens to invest their money and time and to arrange their affairs in reliance upon those laws. Laws are not immutable, but we can see no reason to prohibit governments from protecting the interests of those who rely upon prior law.’ Sklar v. Byrne, 727 F.2d 633, 641-42 (7th Cir.1984).

“The difficulty arises, however, in assessing whether the grandfather clause bears a rational relationship to this legitimate governmental interest. The benefits of this grandfather clause are available only to those persons who have registered their firearms as assault weapons under former section 2323.05. Section 2323.05 provided that ‘[a]ny person who lawfully possesses an assault weapon prior to October 31, 1989 shall register that firearm ... between November 1, 1989 and November 30, 1989.’ The problem is, of course, that our circuit found Columbus's former ordinance to be unconstitutionally vague on its face. See Springfield Armory, 29 F.3d at 251. Indeed, we concluded that ‘the ordinance is fundamentally irrational and impossible to apply consistently by the buying public, the sportsman, the law enforcement officer, the prosecutor or the judge.’ Id. at 252. Thus, the City's grandfather provision is predicated upon an ordinance that we previously invalidated, precisely because it failed to place firearms' owners on notice as to whether or not their firearms were ‘assault weapons.’ Hence, it necessarily follows that firearms' owners were not given sufficient notice under the former ordinance of the need to register their weapons. This is to say nothing of the fact that the challenged ordinance is broader than its predecessor and presumably encompasses firearms which were not included under the prior law. These owners obviously would have had no reason to register their weapons in 1989.11

“Rational basis review, while deferential, is not ‘toothless.’ Mathews v. Lucas, 427 U.S. 495, 510 (1976). In Evans, the Supreme Court explained: ‘[E]ven in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause.’ Evans, 517 U.S. at 632. The rational basis test requires the court to ensure that the government has employed rational means to further its legitimate interest. Quill, 521 U.S. at ____. The grandfather provision at issue here ‘fails, indeed defies, even this conventional inquiry.’ Evans, 517 U.S. at _____. There simply exists no rational distinction between the individual plaintiffs in this case and those persons who registered their firearms during a thirty day window in 1989 on the basis of little more than a hunch that their firearms might constitute ‘assault weapons’ under the City's unconstitutionally vague ordinance. See Quill, 521 U.S. at ____, (the Equal Protection Clause ‘embodies a general rule that States must treat like cases alike’). Therefore, we hold that section 2323.31(B)(3) violates the Equal Protection Clause and is unconstitutional.” 152 F.3d at 531-532

The Sixth Circuit upheld the second grandfather provision which exempts any large capacity magazine which belongs to a firearm or which is possessed by the owner of a firearm which is registered with federal authorities under the National Firearms Act (26 U.S.C.A. Secs. 5801-5871), or if the large capacity magazine belongs to or is part of an assault weapon which has been registered under Section 2323.05(C) or has been rendered totally inoperable or inert and the firearm cannot be readily rendered operable or activated and which is kept as a trophy, souvenir, curio or museum piece.

“C.C.C. § 2323.32(B)(3). Of course, to the extent this provision grants an exemption ‘if the large capacity magazine belongs to or is part of an assault weapon which has been registered under Section 2323.05,’ it is invalid for the reasons stated in Part II-A of our opinion. With respect to the remainder of the provision, Plaintiffs contend that it allows individuals who have any firearm registered with federal authorities to possess an infinite number of magazines, even if those magazines are not designed for the registered weapon. According to Plaintiffs, this irrationality discriminates against individuals who have no firearms registered with the Federal Government. We disagree.

“Individuals who have registered firearms with the Federal Government legitimately expect that they are entitled to the possession and use of those firearms, as well as any related components. In our view, the City could rationally choose to protect these reliance interests through the use of a grandfather provision like the instant one. Legislation generally is presumed constitutional despite the fact that, in practice, it may result in some inequality. Nordlinger, 505 U.S. at 10; McGowan v. Maryland, 366 U.S. 420, 425-26 (1961). This presumption is clearly warranted here, as the City has not drawn a distinction along any constitutionally suspect (e.g. racial or religious) lines. Rather, the City has reserved the benefits of its grandfather provision, in part, for those individuals who have a firearm registered with the Federal Government. This is perfectly acceptable. Thus, we conclude that section 2323.32(B)(2), with the exception of the clause which conditions exemption upon registration under the former ordinance, satisfies the requirements of the Equal Protection Clause and passes constitutional muster.” 152 F.3d at 532-533.

Grandfathering clauses will be struck down if the justification for the legislation is that the conditions are so bad that lead to the creation of the legislation in the first place so there is no justification for the distinction. This was the case in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2003), cert. den. 540 U.S. 1046 (2003) which dealt with a multi pronged challenge to the 12999 revision to the assault weapons control act. One of the provisions “grandfathered in” as being exempt from registration provisions retired peace officers. The Ninth Circuit struck down exception with respect to retired peace officers, and held that the retired officers' exception fails even the most deferential level of scrutiny under the Equal Protection Clause.

By way of background, the 1999 amendments to the assault weapons control act allowed certain retired peace officers upon retirement to acquire form their employers (if the employer was willing to do so) and to permanently keep their on duty assault weapons without having to go through a registration process. (It should be noted that similar provisions [18 USC 922(v)(4)(C)] exists under the 1994 federal statute governing assault weapons that were manufactured or imported "post ban" which were not alluded to in the Ninth Circuit's opinion.) The challenge to the retired officer provisions of AWCA was brought as part of a broader attack to strike the entire law down. As originally enacted, the AWCA authorized specified law enforcement agencies to purchase and possess assault weapons, and permitted individual sworn members of those agencies to possess and use the weapons in the course of their official duties. The 1999 change enacted two additional provisions relating to peace officers:(a) the Legislature provided that the peace officers permitted to possess and use assault weapons in the discharge of their official duties were permitted to do so "for law enforcement purposes, whether on or off duty", and (b) an exception for retired peace officers.

As the Court noted, the statute, as amended, constituted a ban on the possession of assault weapons by private individuals, with a grandfather clause permitting the retention of previously-owned weapons by their owners, provided the owners register them with the state and with a statutory exception allowing the possession of assault weapons by retired peace officers who acquire them from their employers at the time of their retirement.

The Ninth Circuit struck down as having no rational basis the establishment of a statutory exception with respect to retired peace officers as upon retirement they could keep weapons that other private citizens not similarly situated could not keep, and held that the retired officers' exception failed even the most deferential level of scrutiny under the Equal Protection Clause. [In doing so it raised questions as to the analogous federal provision.] Specifically, the Court stated:

“First, the state argues that because a similar exception exists in the federal assault weapons law enacted in 1994, the provision ‘ostensibly withstood the rational basis test federally.’ However, the mere existence of the same distinction in a federal statute is not probative evidence that the provision is rational. Although we must presume that the legislative classification challenged in this case has a rational basis, Schweiker v. Wilson, 450 U.S. 221, 230 (1981), that presumption cannot be bolstered by the fact that the same classification exists in another jurisdiction's statute. An unconstitutional statute adopted by a dozen jurisdictions is no less unconstitutional by virtue of its popularity.

“Second, the state argues that because some peace officers receive more extensive training regarding the use of firearms than do members of the public, allowing any retired officer to possess assault weapons for non-law enforcement purposes is reasonable. This justification is basically inconsistent with the legislative purpose of the AWCA; it bears no reasonable relationship to the stated legislative purpose of banning the possession and use of assault weapons in California, except for certain law enforcement purposes. The object of the statute is not to ensure that assault weapons are owned by those most skilled in their use; rather, it is to eliminate the availability of the weapons generally. Not only is the retired officers exception contrary to the purpose of the AWCA, its relationship to any legitimate state goal ‘is so attenuated as to render the distinction arbitrary or irrational.’ City of Cleburne, 473 U.S. at 446.

“The state's third argument fails also. The state contends that the retired officers exception is rational because it allows retiring peace officers to keep their duty weapons, which in some cases the officer may have purchased with his own funds. However, the retired officer provision contains no such limitation; indeed, on its face the statute would permit the transfer of any number of assault weapons to any peace officer, regardless of whether that officer had ever come into contact with the weapons being acquired. Indeed, in contrast to the off-duty officer provision, under the retired officers' exception the retiree may possess and use assault weapons for any purpose whatsoever.

“We may not complete our evaluation of the statute's validity merely by examining the state's proffered justifications for the law. Rather, we must determine whether any reasonable theory could support the legislative classification. Heller, 509 U.S. at 320. An exception to the assault weapons law for retired officers might arguably be rational if California required its retired peace officers to participate as reserves in the event of an emergency. However, there is no such requirement in California. Moreover, even if there were such a requirement, a statute that permitted retired peace officers -- at their discretion -- to obtain assault weapons and use them for unlimited purposes, and in an unregulated manner, would not reasonably advance the objective of establishing a reserve force of retired officers prepared to act in emergencies.

“We thus can discern no legitimate state interest in permitting retired peace officers to possess and use for their personal pleasure military-style weapons. Rather, the retired officers exception arbitrarily and unreasonably affords a privilege to one group of individuals that is denied to others, including plaintiffs.

“In sum, not only is the retired officers' exception contrary to the legislative goals of the AWCA, it is wholly unconnected to any legitimate state interest. A statutory exemption that bears no logical relationship to a valid state interest fails constitutional scrutiny. The 1999 AWCA amendments include, however, a severability provision providing that should any portion of the statute be found invalid, the balance of the provisions shall remain in force. Accordingly, because the retired officers' exception is an arbitrary classification in violation of the Fourteenth Amendment, we sever that provision, § 12280(h)-(i), from the AWCA.” 312 F.3d at 1090-1091.

After Silveira, state law was changed to address these objections. [This issue has also arisen as to sex offender “buffer zones” but the “grandfather” issue as to why some are allowed to stay and others are not allowed to has not arisen in terms of “equal protection”. Mann v. Georgia Department of Corrections, 653 S.E.2d 740 (Ga. 2007) (Statute unconstitutional taking under Georgia and United States Constitutions where there was no "grandfather" exemption forcing homeowner to move from present residence); State v. Pollard, 886 N.E.2d 69 (Ind.App. 2008)(Indiana’s residency statute, ex post facto law as applied to Pollard as he committed sex offense before law enacted and lived in the residence.); State v. Willard, 756 N.W.2d 207, 212-213 (Iowa 2008); State v. Finders, 743 N.W.2d 546, 548-549 (Iowa 2008). The issue of who California’s Prop. 83 Buffer Zones [Penal Code § 3003.5] applies to is now and has been in litigation See: Doe v. Schwarzenegger, 476 F.Supp.2d 1178, 1182-1183 (E.D. Cal. 2007); People v. Milligan, (2008) 166 Cal. App. 4th 1208; Rehearing granted, depublished by People v. Milligan, 2008 Cal. App. LEXIS 1686 (Cal. App. 4th Dist., Oct. 9, 2008). There are 4 Habeas Cases [S157631 to S157634] before the California Supreme Court as to whether or not the statute violates the ex post facto clauses of the state and federal Constitutions, has been impermissibly retroactively applied, constitutes an unreasonable parole condition, impinges on the habeas petitioner’s substantive due process rights, and is unconstitutionally vague.]

I should add that “if it is so bad, why do you allow it to continue” argument has been made successfully in other areas. One example was as to alcohol regulations in Wisconsin Wine & Spirit v. Levy, 416 N.W.2d 914 (Wis.App. 1987). In striking down a perpetual tied house exemption the Court stated:

“We reject the proposition that purely economic reasons justify a perpetual exception from a police power regulation. The court in Grand Bazaar, 105 Wis.2d at 214—15, 313 N.W.2d at 811, rejected the city’s argument that the grandfather clause of the ordinance was reasonable be cause it protected the substantial investments the ‘grandfathered’ licensees had made in their licenses. The court applied the five-fold test for viewing equal protection challenges to classification schemes set forth in Omernik v. State, 64 Wis.2d 6, 19, 218 N.W.2d 734, 742 (1974), as follows:

(1) All classification must be based upon substantial distinctions; (2) the classification must be germane to the purpose of the law; (3) the classification must not be based on existing circumstances only; (4) the law must apply equally to each member of the class; and (5) the characteristics of each class should be so far different from those of other classes as to reasonably suggest the propriety of substantially different legislation. Grand Bazaar, 105 Wis.2d at 215, 313 N.W.2d at 811.

“We utilize those portions of the Grand Bazaar court’s analysis of the five-fold test which are dispositive of the validity of the grandfather clause contained in sec. 125.- 69(1)(a), Stats.

In Grand Bazaar, the city had argued that part (3) of the Omernik test was satisfied because, as time went on, various members of the exempted class would fail to renew their licenses, and the class size would diminish. The trial court herein rested its conclusion in part on this same reasoning. However, as to this reasoning the Grand Bazaar court stated:

‘We note, however, that the grandfather clause contains a perpetual right, not a temporary one. If one held a Class ‘A’ license on June 30, 1977, it could be renewed ad infinitum regardless of the percentage of liquor sales. As we stated in State cx rd. Ford Hopkins Co. v. Mayor [ Wis. 215, 224, 276 N.W. 311, 315 (1937)], distinction cannot be based on time.’ We conclude that [grandfather clause] is based solely on existing circumstances on June 30, 1977, and therefore the classification is a denial of equal protection. Grand Bazaar, 105 Wis.2d at 217, 313 N.W.2d at 812.

“Section 125.69(1)(a), Stats., creates a perpetual class of privileged wholesalers- retailers based solely on existing circum stances on October 3, 1963. We conclude that Grand Bazaar is controlling and that the classification is a denial of equal protection.

“Part (5) of the Omernik test requires that the characteristics of each class shall be so far different as to reasonably sug gest the propriety of substantially different legislation. Omernik, 64 Wis.2d at 19, 218 N.W.2d at 742. The grandfather clause establishes two separate classes of liquor wholesalers whose only distinguishing feature is that on October 3, 1963 one class had an interest in a retail liquor license or establishment while the other did not. We cannot conclude that these two classes are so far different from one another as to reasonably suggest the propriety of substantially different legislation. In fact, the creation of a perpetual class of wholesale-retail liquor licensees exacerbates the very problem intended to be addressed by the tied house laws. By the combination of the prohibition against wholesalers holding a retail liquor license and the exception thereto, the legislature created a class of liquor wholesalers with monopolistic powers to practice all of the evils against which tied house laws are intended to protect. For this additional reason we conclude that the grandfather clause contained in sec. 125.69(1)(a), Stats., creates a classification without a rational basis and is a denial of the equal protection of the laws.

“Other state courts which have addressed the issue have reached the same result. Affiliated Distillers Brands, 265 A.2d at 816; Harrison v. Buckhalt, 364 So.2d 283, 285 (Ala.1978); City of Graysville v. Swann, 388 So.2d 540, 541 (Ala.1980). In Affiliated Distillers Brands, 265 A.2d at 816, the court noted that if, as contended by the state officers, manufacturer-wholesaler combinations were a serious threat to the industry, perhaps any grandfather clause would be invalid.

“Harrison involved the validity of an ordinance which prohibited the retail sale of intoxicants within 600 feet from a church building or grounds, or school buildings or grounds. However, the ordinance contained a grandfather clause which permitted those already licensed, and their successors, to make retail sales of such beverages within the prohibited distance and to continue to do so indefinitely. The court struck down the grandfather exception. The court stated that the grandfather clause prevented the fulfillment of the purpose of the ordinance. Id., 364 So.2d at 285. The court pointed out that in those cases in which similar grandfather clauses have been upheld the statute or ordinance provides for the ultimate elimination of the sale of alcoholic beverages in a prohibited area. Id.

“A grandfather clause which permits a temporary right to do a prohibited thing, if it has a rational basis such as amortization of an investment, may be valid, depending on the nature of the regulation. If the regulation is a police power regulation, a grandfather clause, which permits a limited class to continue the evil legislated against, will be closely scrutinized. If on the other hand, the statute or ordinance imposes a licensing or examination requirement on a new entry into a trade, it is well within the legislative prerogative to provide that past business experience or practical training is a substantial equivalent of any licensing or examination requirement. See Harrison, 364 So.2d at 285.

“The defendants attempt to equate the grandfather clause contained in sec. 125- 69(1)(a), Stats., with the exception to the liquor license quotas created by ch. 48, Laws of 1973, and sustained in Moedern v. McGinnis, 70 Wis.2d 1056, 236 N.W.2d 240 (1975). We reject the equation.

“Recognizing that the age-of-majority legislation threatened financial ruin to those holding beer-only licenses, the legislature permitted such licensees to apply for and obtain intoxicating liquor licenses in excess of the existing quota in their respective municipalities. The power of the state over the liquor industry is almost plenary. Moedern, 70 Wis.2d at 1068—69, 236 N.W.2d at 246. Under the twenty-first amendment to the United States Constitution, the state could absolutely prohibit traffic in intoxicants. Id. at 1070, 236 N.W.2d at 247. The state is thus free to establish the quota of liquor licenses in each community at any figure it deems consistent with public policy. As the court said in Moedern at 1071, 236 N.W.2d at 247: ‘The wisdom of increasing the number of available licenses was for the legislature.’ The court found that the plaintiff’s arguments under the equal protection guarantee of the constitution did not need to be addressed. Id. at 1068, 236 N.W.2d at 246. We can see no legitimate basis upon which the legislation involved in Moedern could be attacked on equal protection grounds. We therefore reject Moedern as inapposite.” 416 N.W.2d at 918-919.

The point is that if the activity is so bad, why – particularly as to an “intermediate classification” vis-a-vis rights or classifications -should present relationships be unaffected? The answer in my mind was that they should not be. And, while “grandfathering in” is often done to avoid just compensation issues – as was the case with Prop. 8, it often makes the classification irrational.

We know that in the gun area because of Heller flat out or defacto bans [unlike neutral registration or licensing] are invalid and differentiation that “grandfather in” are subject to just compensation requirements, which can be very expensive. That is what precludes a number of ideas from actually getting started as no one wants to use scarce public funds for these purposes. Indeed, the “grandfathering in” issue is a subtext in several of the post Heller decisions which seek to challenge “freeze” provisions. These same issues arise whether for same sex relationships or gun rights. Therefore, it is in the interest of gun right supporters to weight in on these Proposition 8 challenges as case law established here may help or hinder them.

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.