Wednesday, March 21, 2018

Post Parkland – Constitutional constraints to action

In 2008, Associate Justice Antonin Scalia, writing for the majority of the Supreme Court in the DISTRICT OF COLUMBIA ET AL. v. HELLER case said after acknowledging the Court has full awareness of fire arm deaths in the country, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”

Any proposed action in response to the mass public shooting at the Marjory Stoneman Douglas High School in Parkland, Florida must be lawful.   Fire arm regulation must not violate 2nd Amendment rights to keep and bear arms.   Seizure of weapons from dangerous persons and involuntary confinement of the mentally ill must not violate the 4th Amendment right to due process.   Reporting of dangerousness by health and school officials must not violate due process and 5th Amendment privacy rights.

There are civil rights organizations throughout the country that will defend these rights vigorously.  The National Rifle Association (NRA) has already contested a Florida statute that raises the age for purchasing weapons from 18 to 21.   The American Civil Liberties Union (ACLU) of Rhode Island is contesting an Extreme Risk Protection Order (ERPO) in that state as a violation of due process.  The ACLU has also spoken out against involuntary institutionalization of the mentally ill based on 4th and 5th Amendment rights to due process and privacy.


Constraints, such as Justice Scalia points out, prevent making schools completely safe, but they do not prevent making them much safer.

The Second Amendment right to keep and bear arms

The Second Amendment to the Constitution was adopted by Congress on December 15, 1791 as part of the Bill of Rights.  It states, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” 

The right to bear arms was seen as fundamental to the right of the people to alter or to abolish a tyrannical government destructive to the right to life, liberty and the pursuit of happiness.   It also confers an individual right to possess a firearm for traditionally lawful purposes such as self-defense.

The Supreme Court of the United States ruled in 2008 that the 2nd Amendment protects an individual's right to possess a firearm.  That right is the individuals and is NOT connected to a militia.  Many mistakenly link the individual right to the militia.  The law of the land is that there is no such connection.

The decision by the Supreme Court in the DISTRICT OF COLUMBIA ET AL. v. HELLER case that decided the individual right was made in a 5-4 decision.  There is always the possibility that a different composition of justices in the future given the right case could overrule that decision.   But that is a hypothetical only. The reality now is that the right to keep and bear arms is an individual right.

Many have called for the elimination of the Second Amendment.  A Google query returns 12 million responses to the question “repeal the second amendment.”  No act of Congress or executive action can eliminate the Second Amendment.   It would require an Amendment to the Constitution.

Amending the Constitution is a difficult process.  A Constitutional Amendment requires a 2/3 supermajority vote in both houses of Congress to begin the process.   After that hurdle it must be ratified by ¾ of the states. 

A single Congressman proposed a bill to repeal the Second Amendment in 1993 and 1994.  He was able to garner zero co-sponsors and the bill was never even scheduled for a committee hearing.  There is little indication in public opinion that elimination of the Second Amendment is desired by a majority.  In fact, there is greater support for gun rights today than since 1950.

The Second Amendment is very secure for the foreseeable future. 

The Heller decision is clear, the government cannot ban a class of fire arms in common use for lawful purposes, nor can it impose such restrictions as to make them useless in self-defense (e.g. unloaded or disassembled).

The Court provides further guidance that helps to establish boundaries of action with regard to Second Amendment rights as follows:

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

The Second Amendment is a reality that will be in place for the foreseeable future.   

The Supreme Court’s 2008 Heller decision is the law of the land and secures the right to keep and bear arms as an individual right for the foreseeable future.   Heller places significant restrictions on government regulation, but also accepts that regulation that does not prohibit a class of weapons or restrict the functional use of a lawful fire arm in self-defense may be permitted.

The Fourth Amendment will constrain intervention

The Fourth Amendment to the Constitution was adopted by Congress on December 15, 1791 as part of the Bill of Rights.  It states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

During a recent meeting in the White House to discuss actions in response to the Parkland shooting a proposal was made to seize fire arms from dangerous individuals.  Vice President Mike Pence commented, “Allow due process so no one’s rights are trampled, but the ability to go to court, obtain an order and then collect not only the firearms but any weapons.”

President Trump responded, "Or, Mike, take the firearms first, and then go to court."

The president could have a point when there is what is called an “exigent circumstance.”  Criminal procedure law allows law enforcement when people are in imminent danger, evidence faces imminent destruction, or a suspect’s imminent escape to take certain actions without obtaining a warrant from a court.  But this will be the rare case.

The primary direction many states are taking to intervene before a mass public shooting can occur is to seize fire arms from individuals deemed dangerous by a court.   These Extreme Risk Protection Orders (ERPO) are to be issued by a court following a filing by police or some other entity typically defined within the law.

The Fourth Amendment to the Constitution demands that ERPOs provide for due process.

The Fourth Amendment would also play a major role should any other type of seizure law be enacted. For example, if an “assault weapon” ban were enacted it would likely only apply to new weapons.   Seizure of millions of weapons from homes would require due process for the owners of those fire arms (legally bought).   It would represent a legal and practical nightmare to enforce such a law.

The logical follow-on question is – how effective can an “assault weapon” ban be if it does not outlaw and seize the estimated 10 million “assault” rifles currently in circulation.

There is also a Fourth Amendment issue with regard to Executive action such as was taken by President Obama in 2016.  A regulation was instituted to direct the Social Security Administration to provide the National Instant Criminal Background Check System (NICS) used for gun purchasing background checks with the names of people receiving Social Security Disability Insurance on the basis of a qualifying mental illness.

The Congress negated the rule in 2017.  There has been much outrage directed toward Congress and the NRA for that action.  The NRA had opposed the Obama order on Second Amendment grounds. 

But the ACLU also opposed the order because it deprived a whole class of individuals of their Second, Fourth, Fifth, and Sixth Amendment rights. 

The government cannot deprive whole classes of people or individuals of their constitutional rights without due process of law.

Fifth Amendment Privacy Protections

The Fifth Amendment protects against self-incrimination, which in turn protects the privacy of personal information.   This right extends to laws such as the Privacy Act of 1974, the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act (HIPAA) of 1996.

An educational agency or institution subject to FERPA may not disclose education records of students, or personally identifiable information from education records without a parent or eligible student’s written consent. 

There are exceptions existing under FERPA.  For example, in some circumstances a court order can be used to obtain records in investigations of acts of domestic or international terrorism.

The HIPAA Privacy Rule provides consumers with important privacy rights and protections with respect to their health information, including important controls over how their health information is used and disclosed by health plans and health care providers.  

HIPAA also allows some exceptions.  When a patient poses a serious and imminent threat to his own or someone else’s health or safety, HIPAA permits a health care professional to share the necessary information about the patient with anyone who is in a position to prevent or lessen the threatened harm without the patient’s permission.

There are clearly restrictions on sharing information about disciplinary or mental health records based on privacy rights contained in HIPAA and FERPA.  But there are also clearly exceptions that have been made.

Any proposal to include school or mental health information in records to prevent purchase of fire arms or to seize fire arms must consider these constraints.  At minimum, the Congress will need to amend FERPA and HIPAA to allow for such exceptions.

There are no privacy restrictions on the Federal Drug Administration (FDA), the Centers for Disease Control and Prevention (CDC) and National Center for Health Statistics to prevent them from conducting macro studies of childhood and adolescent use of antidepressants and psychotropic drugs.

First Amendment constraints

Some argue that entertainment media such as movies, television, and video games contribute to an increased propensity toward violence, particularly among youth.  

A U.S. District Court ruled in 2007 that there was no established "causality between violent video games and violent behavior." In a landmark case, Brown v. Entertainment Merchants Association (2011) the Supreme Court upheld that decision 7-2.

However, Justice Alito, in a concurring opinion said, "There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show.”

Justices Beyer and Thomas "believed parents to have complete authority over their minor children and expected parents to direct the development of those children," and that the intent of the First Amendment "does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians."

These dissenting opinions indicate a slight crack in the Supreme Court on these issues but, bringing court cases or passing laws related to movies, television, and video games is very likely to be ineffective.  There are clear First Amendment issues and there is an array of powerful lobbies in Hollywood and Silicon Valley that will oppose vigorously any restrictions on movies or video games. 

In this regard any action may be better directed toward consumer action, public and political demands on these industries to act responsibly.

The Liberty Takes Effort Blog will in the coming weeks offer four or five posts intended to create greater understanding to underpin concerted action post Parkland that is both effective and achievable.

1 comment:

  1. The Bill of Rights

    Following the Declaration of Independence and the Revolutionary War the Founding Fathers drafted the Constitution. The Constitution required the approval of 9 of the 13 colonies to be ratified. Several states ratified it quickly (DE, PA, NJ, GA, and CT). Several other states were hesitant.

    Federalists and Anti-Federalists argued over the power of a central government. Federalists believed in a very strong central government. Anti-Federalists were very concerned about the concentration of power in the central government. They demanded an explicit statement of largely personal rights if they were to agree to the Constitution and the formation of the United States of America.

    In Massachusetts there was major opposition to a strong central government. The other former colonial states watched the debate unfold in Massachusetts. It was feared that if Massachusetts rejected he Constitution the remaining states would follow suit.

    Massachusetts Governor John Hancock broke the impasse with a proposal of several amendments of personal rights to be explicitly stated in the Constitution as amendments using the process described in the Constitution. The compromise was accepted and Massachusetts ratified the Constitution.

    The first ten Amendments to the Constitution were adopted collectively and called the Bill of Rights. They are a statement of personal rights. The Constitution would not have been ratified without the Bill of Rights. It is essential to our republic.


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