Quite arguably, the 2nd Amendment took a significant step back recently. In Jackson v. City and County of San Francisco, the United States Supreme Court has “voted” to deny certiorari to plaintiff Jackson, et. al’s appeal from the U.S. 9th Circuit’s decision rejecting her challenge of a San Francisco police code which mandates the lock-box storage of firearms in the home and also that such firearms be disabled by a trigger lock. Jackson v. City and County of San Francisco [writ of certiorari denied] 2015 WL 3537821 (2015).   Effectively, this decision on the part of the U.S. Supreme Court a) takes a shotgun shell sized hole out of progress made by proponents of the 2nd Amendment in District of Columbia v. Heller and it progeny, and b) leaves the scope of what may be considered the 2nd Amendment fundamental (or “core”) rights, in serious doubt. See District of Columbia v. Heller, 554 U.S. 570 (2008). One concession that we may have from all this is the rather strident dissent from the denial of certiorari authored by Justice Thomas, and joined by Justice Scalia. In that dissent, Thomas well lambasts the 9th Circuit decision as being “in serious tension” with Heller – for prohibiting “immediate self defense” of the home. Jackson, 2015 WL at 2. The appeal to common sense made by Thomas is also refreshing. That the San Francisco police code prevents citizens from practicing immediate self-defense when they are “most vulnerable”, at home and/or possibly “sleeping” or otherwise “indisposed”, Thomas cannot fathom how such law does not impose a substantial burden. Id.

How Did We Get Here?

Post-Heller, it seemed improbable that any Federal Court could credibly come to the conclusion that the 9th Circuit has in this case – that the San Francisco Police code in question either a) does NOT place a substantial burden on core 2nd Amendment rights OR b) that the level of scrutiny against such law should be something less than the very highest degree possible (strict scrutiny). To illustrate this point, it is first worth revisiting certain aspects of the holding in Heller and understanding how the wishy-washiness of the Heller decision has proximately opened the door to egregious decisions like Jackson. The reader will probably know that the supposed land-mark nature of Heller achieved a few things for pro-Second Amendment advocates – a) The U.S. Supreme Court held that immediate defense of the hearth/home by conventional firearms, goes to the core of 2nd Amendment rights where the full force of the 2nd Amendment presumably comes into play AND b) rational basis review (the lowest level of means-end scrutiny) is never appropriate to assess laws which impede such self-defense by arms in the home. Heller, supra.  Later, McDonald v. Chicago, decided that the 2nd Amendment (and, by extension, Heller) does apply to the respective states, through the 14th Amendment, and is not merely limited to checking laws issued by the federal government. 561 U.S. 742 (2010).

All Over the Place

Critically though, the Heller Court did not specify the level of scrutiny to be applied to such laws (be it strict scrutiny or intermediate scrutiny); the decision also did not fully delineate what constitutes a “substantial burden” on 2nd Amendment rights even in the context of laws regulating the possession of conventional firearms in the home. Justice Scalia, the author of the Heller decision, may not have foreseen just how fatal this failure would prove to be. But, for proof of the bad omen, we need not go any further than the fact that Mr. Heller is still in court – politicians took immediate advantage of the decision’s weakness by legislating other laws making it (still) very difficult to effectively possess firearms in the District of Columbia (e.g. 1 gun/month purchase limit; mandatory expiration of firearms licenses after 3 years; etc.)! See Heller v. District of Columbia, 45 F.Supp.3d 35 (D.C. 2014). The net effect of this failure has also practically allowed various courts to cobble together their own self-serving jurisprudence wherein what amounts to a “substantial burden” on 2nd Amendment rights and (therefore) which level of scrutiny aught to be applied against laws that impede those rights, is left entirely up to the respective court.

Problematically, courts invariably reference Heller as the seminal authority on what aught to be the scope of 2nd Amendment rights, but do so to reach shockingly different conclusions of law. How do we, for instance, square recent federal court decisions like Ezell v. Chicago (City of Chicago laws which prohibited the operation of gun ranges within city limits while requiring gun-training as a pre-requisite for licensing found to violate the 2nd Amendment as the 7th Circuit held that those laws, in light of Heller, effectively prevented persons from practicing self-defense of the home) or Gowder v. Chicago (where the Federal District Court of the Northern District of Illinois struck state law which forbade permits to persons formerly convicted of non-violent misdemeanors as unconstitutional and triggering strict scrutiny as it, in light of Heller, prevented protection of the home) WITH the 9th Circuit’s decision in Jackson? See Ezell v. Chicago, 651 F.3d 684 (7th Cir. 2011); Gowder v. Chicago, 923 F.Supp.2d 1110 (N.D. Ill. 2012). Besides Jackson, there are any number of a host of other puzzling decisions, in theory referencing Heller, but in practice deviating from Heller, and again underlining a distinct lack of consistency in overall 2nd Amendment litigation – For instance, U.S. v. Chovan (the 9th Circuit rules that federal prohibition of persons convicted of misdemeanor-level domestic violence does not impose any cognizable burden on 2nd Amendment rights, in spite of Heller, and therefore does not trigger any heightened scrutiny – rational basis review being appropriate); Or try Kwong v. Bloomberg (New York City ordinance imposing a $340.00 administrative registration fee for each firearm, upheld by the 2nd Circuit; despite making it practically prohibitive to own a firearm in New York City and though imposing a fee some six times larger than other municipalities of the state, the 2nd Circuit found that such law does not substantially burden the 2nd Amendment and chose to apply only intermediate scrutiny). U.S. v. Chovan, 735 F.3d 1127 (9th Cir. 2013); Kwong v. Bloomberg, 723 F.3d 160 (2d Cir. 2013).

Where Do We Go From Here?

  If anything, these cases (and Jackson in particular) underline how badly in disrepair the state of 2nd Amendment law is, post-Heller, and how much the U.S. Supreme Court should be involved to set forth a solid and repetitive framework for lower courts to follow. Justices Thomas and Scalia appear to realize this. Indeed, the dissent is also notable for how it moves to set the record straight on  Heller so as to save that decision from the ambiguity it has unwittingly fallen into. Specifically, Thomas chided lower courts about their conventional invocation of Heller as a means for them to independently “balance” the perceived burden imposed by a given law on 2nd Amendment rights and (thus) independently apply some appropriate level of scrutiny, on a sliding-scale. Rather, Thomas states that no part of Heller stands for such a proposition and that the takeaway from Heller should have been the obligation of a court to scrutinize “text, history, and tradition.”  Jackson, supra. Thomas’s dissent also debunked an especially favorite contemporary reference to Heller, where courts have taken that decision to mean that anything less than an outright prohibition on the possession of firearms in the home, does not equate to a substantial burden on 2nd Amendment rights.  Id.  But ultimately, when things are all said and done, a dissent is but a footnote in history. For all Thomas’s and Scalia’s upbraiding of Jackson and lower courts’ evisceration of Heller, nothing will necessarily be accomplished on the strength of those words alone.

Citizens of our fair Commonwealth, who also happen to be gun-rights activists, can rest assured though that laws like the one at issue in Jackson are not likely to ever menace the 2nd Amendment in Pennsylvania. There are at least a couple of reasons for this – Pennsylvania’s Uniform Firearms Act has no such onerous regulation and (furthermore) § 6120(a) of the Act preempts any municipality from regulating in this same field. However, for those concerned with a big picture assessment on the state of the 2nd Amendment today you may well ask yourselves, what the Heller was the 9th Circuit and/or the U.S. Supreme Court, thinking?

4 thoughts on “WHAT THE HELLER?

  1. My take is that the Court wants to see how the law develops in the Circuits and is waiting on a clear conflict between the Circuits before weighing in.


    1. Understood and that’s a good point but “clear conflict” (by that I take it you mean two or more identical fact patterns where the Circuits come to contrary conclusions) may be hard to come by. I’m also afraid that should the Supreme Court decide to take on a particular state gun law, the decision will be, a la Heller, on extremely narrow grounds, or perceived to be on narrow grounds – meaning the lower federal courts will just decline extending the Supreme Court holding to other 2nd Amendment fact patterns. For example, let’s say the Court did grant cert to Jackson and did decide and only decided that such a “lock-box requirement” violates the 2nd Amendment, I wouldn’t be surprised (considering the post-Heller debacle) that the Circuits would take that to mean that other similar but different prohibitions are arguably still Constitutional. The “catch” is in the width and breadth of the Supreme Court decision. In the context of the 2nd Amendment, the post-Heller state of the law proves that the Supreme Court needs to be more clear and strident in their opinions but gun law being as sensitive an issue as it is, I find it unlikely that the Court will be any more sweeping than it was in Heller.

      Additionally, there arguably is already clear, post-Heller, conflict among the Circuits. Just last year, the 9th Circuit (yup, the 9th) decided Peruta v. San Diego, wherein it found a county law that purported to ban concealed carry absent a showing of “good cause”, unconstitutional. Interestingly, that Court found that though Heller I factually revolved around laws that flatly banned firearms in the home and did not explicitly delineate the physical scope of 2nd Amendment rights, Heller was nonetheless guided by principles of scrutinizing text, history and tradition and that that those three things point to viewing fundamental 2nd Amendment rights as including “publicly bearing” arms. Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1150-68. Yes, right out of the Thomas/Scalia school of thought! But contrast Peruta with numerous other Circuit or District court decisions: Davis v. Grimes, 9 F.Supp.3d 12 (D.Ma. 2014)(District court in the 2nd Circuit decides that permitting for concealed carry tied to mandatory showing of “special cause” is constitutional); Drake v. Filko, 724 F.3d 426 (3d Cir. 2013)(3rd Circuit decides that state law requiring “justifiable showing” for concealed carry applicants is constitutional). There are a good number of other post-Heller conflicts out there and its getting messier by the day.


  2. Sadly this has been the pattern with the Supreme Court on guns. If they hear a case at all (Usually they just deny certiorari and ignore the cases) and it has some positive aspects further cases are just denied and various circuits chisel away or reverse it and they just ignore it. Conflicts from circuit to circuit aren’t even mentioned.
    Sometimes I think all those internet conspiracy theories that something is being held over the Chief Justice’s head to get him to make that ridiculous Obamacare “tax” decision and he has just folded up on everything since then are true.
    I don’t think Heller has his gun permit yet does he?


  3. The Supremes have gone “left”. Stand by for more decisions that fly in the face of constitutionality and common sense. This isn’t just about guns. This shift to the left will be across the board in all cases before the court. The last bastion of hope, fairness and justice, has fallen.


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