The Second Amendment Two-Step

[Al Norris]

The Second Amendment Two-Step, as a legal defense against the carry outside of the home question

A week ago (maybe 2), Patrick, over at MDShooters.com, first gave voice to the type of defense we are seeing our opponents use.

The Defense argument: 1a) The bearing of arms outside of the home is not the core of the Heller holding. 1b) Since the bearing of arms outside of the home is not core, a lessor scrutiny then applies.

2) The defense crafts a standard of evaluation that it claims to be intermediate (or some other heightened) scrutiny, but is in reality a reasonableness test, aka rational basis.

This is what appears to be working within the various District Courts at the moment. Heller took rational basis testing off the table, when reviewing 2A questions. It seems that the current method of calling this type of scrutiny anything but rational basis, is working within this lower level of the Courts.

It also appears that the lower courts really do not want to grapple with these cases (they don't want to set precedent. They would prefer the status quo), so they make rulings guaranteed to move to the Circuit Courts where the big boys can make the tough decisions.

Just as our side is attempting to develop that "bear" means to carry in places other than the home, our opposition is attempting to circumvent the Heller reasoning that rational basis scrutiny is off the table. At best, this is a pattern being developed, in the hopes that the higher Courts (the Circuit Courts) will adopt wholesale. This, despite the signals from the 7th Circuit, the 3rd Circuit and especially the 4th Circuit (Chester) that it won't fly.

What we are now seeing is this 2A two-step, in action. The recent decision in Georgia Carry.org v. Georgia is the best example I can give.

In this case, A Minister challenged the Georgia law that bans carry within Churches. "A person shall be guilty of carrying a weapon or long gun in an unauthorized location and punished as for a misdemeanor when he or she carries a weapon or long gun while: In a place of worship;" (See OCGA § 16-11-127(b)(4)). OCGA § 16-11-127.1 is the list of exceptions of who can carry in these banned areas (government officers, natch). The challenge asserted both 2A and 1A (Free Exercise Clause) grounds.

The Judge in this case, accepted as a rationale, the States means-end test of public safety, called it intermediate scrutiny, and said that the burden of surrendering your right to self-defense, while worshiping, was too slight to be unconstitutional. Interfering with the Free Exercise Clause was likewise inconsequential, as regards the States compelling important interest in public safety.

That, dear reader, is the 2A Two-Step in action.

I agree with Patrick, that this is a stalling maneuver, at best. The first Circuit Court to strike this down, will cause this whole house of cards to come tumbling down. Everywhere.

[jaydubya]

Al -- Since you have used the term, 'rational basis' repeatedly in your post above, it must be a legal term. Could you expound upon what it means?

Cordially, Jack

[Al Norris]

Certainly Jack.

Judicial Scrutiny encompasses a means by which the Courts view the constitutionality of a legislative act (law). While I am not an attorney, I believe the following is more or less on point.

Laws that are challenged on the basis of constitutionality are reviewed under 3 general forms of what is termed, Judicial Scrutiny: 1)Strict; 2)Intermediate or Heightened; and 3)Rational Basis. With Rational Basis being the lowest form, and one in which most laws will pass review. So let's take them in ascending order.

In the application of rational basis, the Courts start with a strong presumption that the law (or policy) is valid. A plaintiff must prove that the law is arbitrary or capricious and has no rational basis to its ends. Most laws will pass this test, as the defendant (the State) can at least show some reasonable ground for the law. The burden of proof is mostly on the plaintiff.

In heightened or intermediate review, the law (or policy) in question must serve an important interest of the government and the must be substantially related to the objective of the law. The burden of proof is somewhat divided between the opposing parties.

Under Strict Judicial review, the law (or policy) is assumed to be unconstitutional from the start. The government must show that they have a compelling interest. If this burden is met, then the government must show that the law is narrowly tailored to achieve the intended result and that it is among the least restrictive means to do so. As you might imagine, the burden of proof is now upon the government.

What is happening in the Courts, as far a all the current 2A litigation goes, is that we are trying to get strict judicial review and failing that, at least heightened (intermediate) review.

[Tom Servo]

What we are now seeing is this 2A two-step, in action. The recent decision in Georgia Carry.org v. Georgia is the best example I can give.

Actually, that case is an example of the sort of litigation we don't need to be bringing. There have been several cases (US v. Williams being notable) brought in the wake of Heller that were premature, ill-argued, or with unsympathetic plaintiffs.

We need to pick fights we can win. Every fight we lose has the potential to set a precedent, and bad precedents make for bad law.

Frankly, I know of no religion (with the possible exception of Sikhism, which is not on the table here) that requires the carry of weapons as part of services. As such, the plaintiff's attempt to tie the church ban to the free-exercise clause comes off as really weird, and not very sound strategically.

All we're left with from this challenge is a finding that churches are "sensitive places" under the Heller dicta, and that bans on carry there are constitutional.

[44 AMP]

All we're left with from this challenge is a finding that churches are "sensitive places" under the Heller dicta, and that bans on carry there are constitutional.

Wouldn't the viewpoint of the congregation in question enter into it? Meaning, if the local church didn't have an issue with carry in church, what weight would that carry? Certainly if they forbid carry in church, that would be given weight, right? Would the reverse be true?

[Al Norris]

Might I also remind you that a church is also private property? This is not a grocery store, to be fairly regulated by the police power of the State. It is a Church. It is Private Property.

Gary? Eugene Volokh made those same observations.

Regardless of any of this, it is rational basis being masqueraded as intermediate scrutiny.

[egor20]

Well, here's Virginia's take, never had any LEO or court official explain the "without good and sufficient reason" to me though. The closest I've been able to come up with is Sunday School.


§ 18.2-283. Carrying dangerous weapon to place of religious worship.

If any person carry any gun, pistol, bowie knife, dagger or other dangerous weapon, without good and sufficient reason, to a place of worship while a meeting for religious purposes is being held at such place he shall be guilty of a Class 4 misdemeanor.

(Code 1950, § 18.1-241; 1960, c. 358; 1962, c. 411; 1975, cc. 14, 15.)

[Tom Servo]

Meaning, if the local church didn't have an issue with carry in church, what weight would that carry?

Unfortunately, none, under current state law.

Certainly if they forbid carry in church, that would be given weight, right? Would the reverse be true?

Some states ban carry in banks. Even if the bank wants its patrons to carry, they don't have the authority to "allow" it, as state law would preempt their wishes. There are some similarities in the way the judge is treating the church as an entity.

To be honest, this is a sticky question. I've no doubt that there's an argument to be made for church carry, but we need one that's relatively unassailable.

IIRC, wasn't there something about requiring rifles to be brought to church in the early Virginia constitution?

[Aguila Blanca]

Originally Posted by Tom Servo

Frankly, I know of no religion (with the possible exception of Sikhism, which is not on the table here) that requires the carry of weapons as part of services. As such, the plaintiff's attempt to tie the church ban to the free-exercise clause comes off as really weird, and not very sound strategically.

You have a valid concern, but it's not as black-and-white as you see it. For example, did you know that churches (and all church-owned properties) are exempt from the Americans with Disabilities Act(ADA)? The law in this country generally gives WIDE latitude to the "Freedom of religion" clause in the Bill of Rights.

[zukiphile]

Originally Posted by tom servo

Frankly, I know of no religion (with the possible exception of Sikhism, which is not on the table here) that requires the carry of weapons as part of services. As such, the plaintiff's attempt to tie the church ban to the free-exercise clause comes off as really weird, and not very sound strategically.

Does that fairly describe the issue?

Many religions do require periodic attendance at church, mosque, temple or synogogue. On what basis would the state demand an adherent make a choice between his rights?

I don't think we would accept a prior restraint on speech or assent to an unreasonable search as a condition to discharge of religious observances. Why should this choice be different?

[Tom Servo]

I don't think we would accept a prior restraint on speech or assent to an unreasonable search as a condition to discharge of religious observances. Why should this choice be different?

Agreed, but that argument isn't in the lawsuit. Judges must look at the arguments as they're presented. Given what he was presented, the judge was left a pretty wide opening to deny the right to church carry.

As with the Williams case I quoted, we need to be careful how we're bringing these arguments forth.

[zukiphile]

Agreed, but that argument isn't in the lawsuit. Judges must look at the arguments as they're presented.

Indeed, however the decision indicates at pages 4 through ten that he was presented with the argument that the regulation unduly burdened religious worship.

I don't take exception to the court's analytical framework, but to its conclusions after applying the framework.

[mikerault]

Isn't this the government stepping in to religion? Gee, I thought that's why we can't pray in schools, separation of church and state. Besides, Jesus admonished his followers to sell their cloaks and buy swords, we are told to be armed in Christian religions!

[BlueTrain]

He also said that one was enough.

[Glenn E. Meyer]

Setting conditions on worship is not the place of the state. Unless one could demonstrate a particular risk for a place or worship - the opinion that it is a HOLY place is not viable.

[zukiphile]

Originally Posted by Glenn E. Meyer

Setting conditions on worship is not the place of the state.

Just to expand on that idea-

If the state requires me to have a driver's license in order to drive to church, that's kosher (miniscule pun) because I would need that to drive anywhere.

If the state prohibits me from stoning my wife to death at church, that's OK because they don't let me do it anywhere else either.

If the state prohibits me from conducting a slave auction at my church, that's fine because it is just enforcing a general prohibition.

However, requiring me to relinquish other perfectly ordinary rights (or rites as the pun may be) in order to attend church appears to significantly and uniquely burden the religious.

[Al Norris]

"Bearing those principles in mind, the Court finds that the law at issue here does not pressure religious conduct enough to constitute a substantial burden to trigger scrutiny under the Free Exercise Clause. No criminal sanctions forbid Plaintiffs from attending a place of worship. The law does not force them to decide between attending worship services or supporting themselves and their families. Instead, Plaintiffs only risk criminal sanction if they refuse to comply with the law’s mandates about carrying firearms in a place of worship, an activity they do not attach to any sincere religious belief. The burden of complying with the law’s requirements does not prohibit them from attending worship services, nor does it place an “unmistakable” pressure on them “to forego religious precepts.” Sherbert, 374 U.S. at 404; Midrash Sephardi, 366 F.3d at 1227. Accordingly, the Court concludes that any burden posed by the law is too insubstantial and too attenuated to any of Plaintiffs’ sincere religious beliefs to state a claim under the Free Exercise Clause."

So the mere fact that the Plaintiff Baptist Tabernacle of Thomaston, Georgia, Inc. (the Church itself), wishes to be able to protect its congregation, but is barred from doing so by law, "is too insubstantial and too attenuated to any of Plaintiffs’ sincere religious beliefs to state a claim under the Free Exercise Clause." The Judge simply dismisses any such belief in the preservation of the congregants as being an "insubstantial" burden.

His dismissal is accompanied by the misapplication of Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116, 73 S. Ct. 143, 154 (1952), an employment case, to come to the erroneous conclusion that protecting the congregation is akin to employment, a secular matter and therefore submissive to government intrusion.

The Judge even looks at the statutes and tells the minister that yes, he can carry in his office (I love the convoluted reasoning here), when the actual wording of the statutes absolutely deny this possibility.

Should I go on to describe the same Two-Step method used in the Judges 2A analysis?

[watchdog]

In Ohio, churches are considered private property, giving the pastor the right to accept or deny carry; however, while this case is not on point, U.S. v. Skoien, 587 F.3d 803 (7th Cir., 2009), is indicative of the Seventh Circuit's view in regards to "intermediate scrutiny". Here is an excerpt from the case:

Putting all of the[] textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it "shall not be infringed." As we said in United States v. Cruikshank, 92 U.S. 542, 553, 23 L. Ed. 588 (1876), "[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed . . . ."
Heller, 128 S. Ct. at 2797-98.

...We note for starters that it is dicta, and although we can hardly ignore it, we think it would be a mistake to uphold this or other gun laws simply by invoking the Court's reference to these "presumptively lawful regulatory measures," without more.

Great Observation Al.

[maestro pistolero]

The Judge in this case, accepted as a rationale, the States means-end test of public safety, called it intermediate scrutiny, and said that the burden of surrendering your right to self-defense, while worshiping, was too slight to be unconstitutional.

Wow. Talk about turning common sense on it's head. I would think the right self defense would be even greater while exercising what is perhaps the most constitutionally protected behavior in the land.