The Internet continues to be embroiled with a debate on gun rights and what can be done to stop mass shootings like the recent one in Orlando. Now the law professors are going at it. Adam Winkler proposed a system of secret courts that can strip people of their rights based on accusations and suspicion alone. Josh Blackman responded sternly.
Rather than belabor the point that secret courts and the stripping of rights without normal due process is highly dangerous and prone to abuse, I'd like to discuss a potential conflict that could arise from a tightening of federal gun rules.
We have all heard of the federal Constitution and its Second Amendment. It has been interpreted by the Supreme Court to mean that all U.S. citizens have a basic right to self-defense and may purchase, own, and carry guns subject to some restrictions. But the federal Second Amendment is not the only source of gun rights in America. State constitutions also protect gun rights.
Consider, for example, the seventh "inherent and inalienable right" protected by the Section 1 of the Kentucky Constitution:
Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.
Unlike the muddled language of the federal Second Amendment, with its weird justification clause about "a well-regulated militia," the language of Kentucky's Section 1 is very clear. The state recognizes an individual right of all people to bear arms in self-defense. The lone limitation on this right is spelled out: the state legislature may enact laws to restrict concealed carry.
And enact laws they have. Concealed carry is legal in Kentucky but only if you have a license for it. You can get a license by applying for one with your county's sheriff's department, taking a class, and paying a fee. A felony conviction is a disqualifier, as would be failing the instructional class (but I've never heard of anyone doing that).
Open carry is unrestricted with the exception of public buildings. You don't need a permit or a license to carry a handgun on your hip or a rifle slung over your shoulder in Kentucky.
But what would happen if the federal Second Amendment was repealed and U.S. citizens no longer had a federal right to self-defense? What if the federal government passed a sweeping ban on the sale or purchase of guns? People who live in Kentucky are also U.S. citizens, so one law under which they are governed would say one thing while another law under which they are governed would say something different. Could they be arrested for breaking the federal law even though the state in which they live allows their behavior?
This situation is not theoretical. It's actually a daily problem already. Some states allow the purchase of certain drugs like marijuana. But marijuana is listed as a "Schedule 1" drug by the federal government and is strictly prohibited under federal law. While residents of Colorado, for example, may legally purchase and possess marijuana under state law, they are breaking federal law by doing so. They can be arrested by federal drug enforcement agents in Colorado even though Colorado police can't arrest them.
This conflict was addressed, at least from one constitutional standpoint, fairly recently in a case called Gonzales v. Raich. California had passed a law allowing personal production of marijuana for medicinal use but federal agents were still seizing plants that had been deemed legal by the state. So a group of growers sued, arguing that principles of federalism should prevent the federal government from interfering with local behavior that was not part of national commerce.
The Supreme Court, by a 6-3 vote in which conservative Justices Antonin Scalia and Anthony Kennedy joined with the more liberal members, upheld the federal law enforcement actions. Under the Commerce Clause, the Court said, the federal government may regulate marijuana production, even if it's ostensibly for personal use only, because the risk that it may eventually enter the national drug market is too great.
The likelihood that all such production will promptly terminate when patients recover or will precisely match the patients’ medical needs during their convalescence seems remote; whereas the danger that excesses will satisfy some of the admittedly enormous demand for recreational use seems obvious. Moreover, that the national and international narcotics trade has thrived in the face of vigorous criminal enforcement efforts suggests that no small number of unscrupulous people will make use of the California exemptions to serve their commercial ends whenever it is feasible to do so. Taking into account the fact that California is only one of at least nine States to have authorized the medical use of marijuana...Congress could have rationally concluded that the aggregate impact on the national market of all the transactions exempted from federal supervision is unquestionably substantial.
So even though Californians could legally grow their own marijuana for medical use under state law, they could still be arrested by federal agents for doing so. And that is now the case in Colorado as well, where people can legally purchase pot and then be constitutionally arrested by the DEA as they leave the dispensary.
How this applies to a potential conflict between a new federal gun ban and a state constitutional amendment depends on the nature of the ban. If the federal government only banned gun sales, for example, they would have a good chance of prevailing on a Commerce Clause argument as they did in Gonzales. It is certainly arguable that legal gun sales in one state will affect the larger national market for guns.
BUT! (There's always a but). If a federal ban prohibited the mere possession of weapons, rather than the purchase, it might have a problem. In a case called United States v. Lopez, the Court had to decide whether a federal ban on carrying guns in and around local schools was constitutional. A high school student was arrested and convicted under the federal Gun-Free School Zones Act. He argued that the federal government had no right to criminalize local activity that did not affect interstate commerce.
In a 5-4 opinion, the conservative members of the Court agreed, ruling that gun possession at local schools was not part of interstate commerce and therefore not subject to federal law enforcement. Conceivably, this opinion would not have been any different even if the Second Amendment was not around. Chief Justice William Rehnquist, writing the opinion of the Court, never mentioned the Second Amendment at all. In fact, none of the Justices who wrote opinions concurring or dissenting mentioned it, either. The issue was whether the federal government had authority to regulate behavior that has little connection to actual commerce, not whether people have a general right to carry guns.
The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.
To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.
Which brings us to what might happen should the Second Amendment be repealed and a federal ban on guns take effect. If the gun ban prohibits sale or purchase, it has a reasonable chance of being upheld as a constitutional regulation of commerce. But if the ban prohibited possession, it could easily be rejected as an overreach of federal authority that interferes with local police powers.
An important point to remember is that the federal constitution has long been considered a "floor" for individual rights. States may protect more rights than the federal constitution, but they can't protect fewer. States can't ban political speech, or establish a state religion, or conduct searches and seizures without probable cause. But they could, if they wanted to, protect obscenity, or ban prayer in legislative sessions, or require warrants for any and all police searches in any situation. Nothing can stop the states from being better stewards of individual rights than the federal government.
The Kentucky Supreme Court once recognized this when it struck down the state's old sodomy laws (which criminalized consensual sexual activity by gay people) more than a decade before Lawrence v. Texas.* In the case of Commonwealth v. Wasson, the Kentucky court noted:
We are not bound by decisions of the United States Supreme Court when deciding whether a state statute impermissibly infringes upon individual rights guaranteed in the State Constitution so long as state constitutional protection does not fall below the federal floor, meaning the minimum guarantee of individual rights under the United States Constitution as interpreted by the United States Supreme Court. The holding in Oregon v. Hass is:
"[A] State is free as a matter of its own law to impose greater restrictions on police activity than those this [United States Supreme] Court holds to be necessary upon federal constitutional standards."
So even if the federal constitution no longer protected an individual right to self-defense, states could still protect it. But conflicts between one and the other could create the kind of mess we've seen with drug prohibition, where people acting legally under state law are arrested and prosecuted under federal law. A Kentucky resident who was well within their rights to buy a gun under state law could find themselves in federal court on criminal charges, and they would have little recourse.
* Hat tip to Kurt Metzmeier for reminding me about this case.