A new gun rights precedent
on Feb 18, 2010 at 4:57 pm
Washington’s state supreme court, deciding an issue that the U.S. Supreme Court will soon face, ruled on Thursday that state and local governments must obey the federal Constitution’s Second Amendment — protecting an individual right to have a gun. “This right,” the state Court ruled over two Justices’ protest, “is necessary to an Anglo-American regime of ordered liberty and fundamental to the American scheme of justice.”
The state court’s main opinion — reached by a 7-2 vote on the Second Amendment issue —  is here. A brief concurrence, arguing against reaching the issue of the Second Amendment’s scope, is here, and a concurring-and-dissenting opinion is here.
While the majority said it was not settling on a specific standard for judging the constitutionality of a particular state or local gun control law, it did refuse at this point to embrace the toughest test — that is. finding any such law invalid unless it could satisfy “strict scrutiny.”  It adopted a mixed level looking partly to history and tradition as it upheld a state law limiting gun rights of children under age eighteen.  The level-of-scrutiny question is one that the Supreme Court may or may not decide when it rules this Term on McDonald v. Chicago (08-1521).
The question of whether the Second Amendment is a restriction on state and local gun control laws is directly at issue in the McDonald case, now set for oral argument before the Supreme Court on March 2. At this point, it is not clear whether the Court, even if it extends the Amendment’s reach, will establish a test for judging when a state or local law violates the personal right to a gun.
The Washington state case — State v. Sieyes (docket 82154-2) — involved a Second Amendment claim by a seventeen-year-old youth, found guilty of possessing a loaded Bursa .380 semi-automatic pistol. The charge was based upon a state law that makes it illegal for a person under age eighteen to possess a firearm, although the law has nine exceptions allowing minors to have a gun. (Among the exceptions are having a gun for hunting, target shooting, and gun competition.)
Christopher Sieyes was arrested in April 2007 on the Kitsap peninsula, west of Seattle, in April 2007 when he was a passenger in a car stopped for speeding. A deputy sheriff saw Sieyes reach for something on the floorboard of the car; after the youth had left the vehicle, the officer found the handgun under the seat.  He was found guilty of second-degree firearms possession. He was sentenced to ten days in juvenile detention, one year of supervision, thirty hours of community service, and a $100 fine.
He appealed, raising a constitutional claim along with other challenges.  The state Supreme Court called up the case for direct review, solely to decide the impact on state and local gun control laws of the Supreme Court’s 2008 decision in District of Columbia v. Heller, establishing for the first time a Second Amendment right to have a gun for personal use, at least for self-defense in the home.
In Heller, the Supreme Court expressly avoided ruling on whether the Amendment applies to any laws other than those enacted by Congress or in the federal enclave of Washington, D.C.  The Washington state court said, however, that “lower courts need not wait for the Supreme Court” to decide that issue. “The Constitution is the rule of all courts — both state and federal judiciaries wield power to strike down unconstitutional government acts,” it said.
The state court rejected what it called “the obsolete reasoning” of two Supreme Court precedents saying that the Second Amendment did not apply to the states — U.S. v. Cruikshank in 1875 and Presser v. Illinois in 1886. Those precedents, it noted, came down before the Supreme Court began a process of “selective incorporation” of the Bill of Rights so that they applied to state and local government — a process that, it said, began in 1897.  The state court also said that the actual holding of those cases has been interpreted too broadly by some analysts.
The state decision focused directly on whether the Second Amendment is incorporated into the Fourteenth Amendment through the Due Process Clause. It said it was following a panel of the Ninth Circuit Court that in July had used the Due Process Clause as the basis for a finding that the Amendment did reach the state and local level (a Circuit ruling that has since been vacated, while the Circuit Court reviews the issue en banc).
When the Supreme Court takes up the McDonald case, it will decide whether either the Due Process Clause or the Fourteenth Amendment’s Privileges or Immunities Clause provides a vehicle for incorporating the Second Amendment gun right.
In deciding whether the limitation on gun possession by minors in Washington State violated the Second Amendment, the state Court spelled out this standard: “We look to the Second Amendment’s original meaning, the traditional understanding of the right, and the burden imposed on children by upholding the statute.”  It then upheld the law. (In a separate part of its ruling, the state Court interpreted a state constitutional guarantee of gun rights to be a safeguard for a personal right. It also found that the law on minros’ gun access was valid under the state constitution, too.)
The ruling was written by Justice Richard B. Sanders and joined by Justices Susan Owens, Charles W. Johnson, Gerry L. Alexander and Tom Chambers. Chief Justice Barbara A. Madsen joined only the result, not the Sanders opinion.
Justice Debra L. Stephens, joined by Justice Mary E. Fairhurst, concurred in the result, but said they “would refrain from engaging in an extended exploration of the unsettled question of federal incorporation of the Second Amendment.” Noting that the Supreme Court is about to take up that issue, they said that “our opinion is likely to be eclipsed before the ink it takes to print it is dry.”
Justice James M. Johnson, the only member of the Court to file a partial dissent, joined in the incorporation conclusion, but argued that the majority should have adopted a “strict scrutiny” standard. “This conclusion,” he wrote, “is inescapable when one considers the fundamental nature of the right to keep and bear arms throughout our nation’s history and our legacy of extending that right to young people.”
