Third Circuit: Second Amendment is a Second Rate Right

In a split decision, a three judge panel at the Third Circuit Court of Appeals effectively ruled the Second Amendment of the Bill of Rights is a second-rate right, not entitled to the full protections of other enumerated rights.  The opinion was filed on 5 December, 2018. The case is Association of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey, No. 18-3170 (3rd Cir. 2018).

The two majority judges followed the trend of other Circuits where the Second Amendment is being degraded and reduced to second-rate status.  Only a month ago, the First Circuit ruled the Second Amendment does not apply outside of the home.

The rogue Circuits are able to do this because the Supreme Court has been refusing to hear Second Amendment cases for nearly a decade.  The Supreme Court only hears a limited number of cases. They are not required to hear all cases.

Some Circuit courts are gutting the Second Amendment by claiming it is not really a right. Rather, they say, it is a privilege the government may regulate if the government thinks it might do some good to regulate it.  These Jurists seem embarrassed by the Second Amendment. They seem to believe their job is to limit it as much as possible, rather than to protect it as a fundamental right. 

Judge Stephano Bibas wrote the dissenting opinion in the Third Circuit ruling. He is an outstanding jurist who was appointed by President Trump.  At only 49 years old, he is already the 15th most cited jurist by the Supreme Court. His resume is impressive. It is easy to see why President Trump chose to appoint him. His dissent runs to 19 pages. The first four paragraphs eviscerates the majority decision. From uscourts.gov:

     The Second Amendment is an equal part of the Bill of Rights. We must treat the right to keep and bear arms like other enumerated rights, as the Supreme Court insisted in Heller. We may not water it down and balance it away based on our own sense of wise policy. 554 U.S. at 634-35.

     Yet the majority treats the Second Amendment differently in two ways. First, it weighs the merits of the case to pick a tier of scrutiny. That puts the cart before the horse. For all other rights, we pick a tier of scrutiny based only on whether the law impairs the core right. The Second Amendment’s core is the right to keep weapons for defending oneself and one’s family in one’s home. The majority agrees that this is the core. So whenever a law impairs that core right, we should apply strict scrutiny, period. That is the case here. 

     Second, though the majority purports to use intermediate scrutiny, it actually recreates the rational-basis test forbidden by Heller. It suggests that this record favors the government, but make no mistake—that is not what the District Court found. The majority repeatedly relies on evidence that the District Court did not rely on and expert testimony that the District Court said was “of little help.” 2018 WL 4688345, at *8. It effectively flips the burden of proof onto the challengers, treating both contested evidence and the lack of evidence as conclusively favoring the government. 

     Whether strict or intermediate scrutiny applies, we should require real evidence that the law furthers the government’s aim and is tailored to that aim. But at key points, the majority substitutes anecdotes and armchair reasoning for the concrete proof that we demand for heightened scrutiny anywhere else. New Jersey has introduced no expert study of how similar magazine restrictions have worked elsewhere. Nor did the District Court identify any other evidence, as opposed to armchair reasoning, that illuminated how this law will reduce the harm from mass shootings. Id. at *12-13. So New Jersey cannot win unless the burden of proof lies with the challengers. It does not.

If the Supreme Court grants a writ of certiorari (the legal term for agreeing to hear a case before the Supreme Court), Judge Bibas' reasoning is rock solid.

For those who do not follow these cases closely, here is a short explanation of the different levels of scrutiny.

Strict Scrutiny - The highest level of protection, reserved for fundamental Constitutional rights.  To pass this level of legal examination, a law, regulation, or other restriction of a Constitutional right must be required by a compelling state interest, and the restriction must be narrowly tailored to achieve that result. The burden of proof is on the government.

For example: There is a general prohibition on shouting "Fire" in a crowded theater, when there is no fire. This is a restriction on the First Amendment right of freedom of speech. The prohibition serves a compelling state interest of public safety. The restriction is narrowly tailored to ban shouting false information that causes severe, direct, physical, harm to others.

A corollary for the Second Amendment would be a general prohibition on firing a gun in a crowded theater when there is no reasonable, deadly threat.

Intermediate Scrutiny- The middle level of protection of less than fundamental rights. The law or regulation must serve an important government objective, and be substantially related to achieving that objective. The burden of proof rests with the government. This level is fairly new, only existing since 1976.

Rational Basis - The lowest level of protection. Generally not applied to rights. It essentially is no protection at all. The party challenging the law or rule has the burden of proof. They have to show the government has *no* legitimate interest in the law, rule, or policy. They have to show there is *no* conceivable rational basis for the law, even if the government never stated one. Laws, rules, or policies are almost never struck down on this basis.

Judge Bibas shows the two majority judges collapsed the level of scrutiny from strict scrutiny to rational basis, while calling it "intermediate scrutiny".

Second Amendment supporters know the Third Circuit ignored the rule of law and applied their own, cherished, leftist, Progressive, biases to gut Second Amendment protections in this case.

Judge Bibas, in his masterful dissent, shows how they did it.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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