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By Jim March Simpson

Alabama just passed, by popular vote, a constitutional amendment changing how the courts are supposed to look at any law, policy or government action that limits self defense and/or “gun rights”. The short form: my prediction is that this change to the constitution will allow new lawsuits to succeed that strike down various aspects of Alabama’s gun and weapons control policies. However, there’s an odd fly in the ointment. It was advertised that the amendment “won’t cost us anything” when in fact it will in some challenges – not a lot, but the costs may cause the courts to try and limit the changes . . .

I’m a former paid lobbyist and grassroots activist in California who worked for ccrkba.org (political sister org to the Second Amendment Foundation) from 2003-2005. Then and prior I was extremely active in the California CCW fight, and I’m a veteran of almost half a dozen civil rights lawsuits since (mostly on electronic voting issues). This information regarding “strict scrutiny” and how it applies to gun laws comes from a conversation that lasted several hours with attorney Don B. Kates, the “grand old master” of the California gun law fights and who used to work for Dr. King in the civil rights movement.

Let’s start with what “strict scrutiny” means. The first thing Don explained is that the government can discriminate by law or by policy. The court has placed limits (“levels of scrutiny”) on that discrimination based on the circumstances.

The most extreme level is “strict scrutiny” which normally kicks in in one of two ways: the right being limited is “very fundamental” or the discrimination is along the lines of race, religion, national origin or the like. So for example, the right to park somewhere might not be very fundamental, but if there’s racial discrimination in the issuance of parking permits that discrimination is going to be shot down in court. The other example is how the 1st Amendment is handled – limitations on free speech for example are going to be subject to strict scrutiny.

The implications of strict scrutiny:

To survive the scrutiny test, the impact on civil rights but be intended to fix something vital, and must be “narrowly tailored” to do that. In other words, if there’s a less-restrictive way to accomplish the “vital” goal, a more restrictive limitation that is the object of a suit will lose.

Here’s why the AL amendment was necessary:

There have been a slew of challenges to severe limitations on carry permit access in states like New York, New Jersey, Maryland and California where carry permits exist but they’re handled on a “discretionary” basis. Federal appellate courts (three-judge panels) ruled in the first three that limitations on the 2nd Amendment should be dealt with on an “intermediate scrutiny” basis instead of strict scrutiny, meaning that the 2nd Amendment isn’t as “fundamental” as the 1st Amendment. Under “intermediate scrutiny” the courts decided that limiting carry permits to the “social and political elite” was OK.

The court in California (Peruta, 9th Circuit) didn’t decide on a standard of scrutiny, but ruled that limited permit access was not constitutional in that state or in Hawaii. Those 9th Circuit cases are being appealed so there’s no legal changes to carry permits in play yet, but Guam decided to do non-discriminatory permits regardless. The US Supreme Court had decided not to hear appeals in the New York (Kachalski), New Jersey (Drake) or Maryland (Woolard) cases. But the 9th Circuit decision creates a “circuit split” meaning the Supremes will have to deal with this soon.

The new Alabama constitutional amendment makes sure that an “intermediate scrutiny” analysis on self defense cannot happen in the area of state or local laws, ordinances or policies. What does all this mean? There are four laws that could be challenged as a result. Three of these, I think, are winners ranging from “slam dunk” to “probable.”

1) The Bowie Ban: Before the Civil War Alabama banned the concealed carry of handguns and “Bowie knives”, later clarified by the courts as “fixed-blades that won’t fit in a normal pocket”. Much later (150 years or so) they put in a carry permit system (titled “pistol permit”) for guns that still excludes large knives. This is a slam-dunk challenge – at a minimum people who have undergone a background check for the “pistol permit” should be trusted with megacutlery, and there’s no costs involved for any government agency other than changing “Pistol Permit” to “Weapons Permit”.

2) The Pistol Permit Itself: In 1903 the Vermont state supreme court ruled that limitations via a permit on handgun carry (open or concealed) violated that state’s version of the 2nd Amendment. For 100 years Vermont was the only state in which you didn’t need a permit to pack – just don’t be a prior felon and answer truthfully if a cop asks if you’re strapped. They were the sole state with Constitutional carry until Alaska cloned it in 2003, Arizona did it in 2010 and now Wyoming and Arkansas have followed suit.

Alaska’s crime rate, when analyzed before and after the 2003 change, shows only one variation: a small but noticeable drop in rapes, possibly as a result of more women packing heat. No increases in crime have occurred in any of the states that have made this switch. As a result, Alabama’s system of “pistol permits” is in jeopardy because the less-restrictive “Vermont carry” (or Constitutional carry) programs work – remember the “narrowly tailored” aspect of a strict scrutiny analysis. Odds of success: close to slam-dunk. Sheriffs’ offices get to charge $25/yr for the permits of which more than half goes to administrative overhead most likely, so the financial loss to those agencies would be fractional. A good and cheap starting point would be to do a public records request to a few Alabama sheriffs asking for cost and profit analysis documents. (It’s possible that tossing the permit process would actually save them money.)

3) No Guns At Courthouses: Right now we are required to disarm in the parking lot and leave our guns in the car. This increases the odds of handgun theft, not to mention negligent discharges, and leaves us disarmed. There have been notable cases of people ambushed outside courthouses where their assassin knew they’d be disarmed by law. In Washington state, Arizona and others the state courts are required to keep lockboxes by the front doors where you check your boomthing on entry. These systems work well and offer a less restrictive approach than the current Alabama process.

Problem: there’s costs involved for the lockboxes, I would guesstimate up to a grand or more per courthouse or other “disarmament zone” building. In theory we could hold raffles at gun shows to cover the costs. If we try to mandate this change by lawsuit without providing a funding mechanism, the fact that the amendment said “zero costs” may bite us in the posterior. Trying to keep us armed inside the court building would probably fail due to the language in Heller (2008) that seems to support restricting guns in “sensitive places”.

4) No Guns At Schools: The situation is similar to those at courthouses, but I think an attempt to do the same with lockboxes would fail. Why? First, they don’t generally have metal detectors at the doors and usually don’t have armed guards, both of which are needed to create a successful “gun free zone” within the building. We’re not going to succeed with the cost increases needed to put those in (whereas they already exist at the courthouses). And yet again, the Heller language on “sensitive places” would be in play.

The other big change is that if a particular government agent, acting on his/her own, violates the 2nd Amendment (say, a cop grabbing a lawful gun from a lawful owner) the “obviousness” of the violation will be increased and the odds of a successful lawsuit against that official actor will go up. Cops for example are able to make “good faith screwups” without getting slammed by lawsuits. Good faith exceptions will be more limited with the “importance” of the right to self defense elevated by this new state constitutional amendment.

Here’s the kicker for those in other states: we need to get the 2nd elevated to strict scrutiny established nationally by the US Supreme Court. What you see here is a set of examples of what that would mean nationwide.

 

Jim Simpson used to be known as Jim March before marrying Jill Simpson, an Alabama attorney, in 2013. He now resides in DeKalb County Alabama near Ft. Payne.

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25 COMMENTS

  1. But liberal judges have a long record of changing the meaning of “strict” when it involves a right they don’t like.

      • Hold your ‘taters there a minute, there Foop. I live in Lauderdale County, Alabama, and I’m agreeable that liberal judges are pretty thin on the ground around here, but if you was to go out and swing a dead cat, you’re bound to hit at least one. Now, I’m not saying that we’re not more than blessed here in God’s country, but the good work won’t be done till we’ve run ’em all north of the Mason Dixon. Then the yankees can do whatever they want with ’em!

  3. I think that “Strict Scrutiny” should apply to the whole US Constitution.

    That way no one would be able to get any of these BS laws on the books or support politician misbehaviors.

  4. If you allow people to carry Bowie Knives, they’ll go all Alamo in the streets over parking spaces.

  5. Good summary Jim. I’d like to add a,couple corrections if I may. I can’t cite the statutes as I don’t have a current Title 13A with me.
    1. You can carry in schools if you have a concealed carry permit (CCP). We have the “School loophole” to the Federal ban.
    2. Because schools don’t have metal detectors, key card systems, or other barriers, as long as your gun is concealed, then all they can do is ask you to the gun in your car or leave. Refusal to leave would be a trespass violation.
    3. This is true even if they have “No Guns” signs. First, to be valid, the signs must be on EVERY entrance to a building. Even if they are, they only become a misdemeanor if the aformentioned barriers are maintained during business hours.

    • Alabama can not trespass you for carrying in a school. It’s not private property. Alabama allows school carry as you illustrated. if a person has any lawful business with the school and the gun in carried legally, they can’t decide you are not welcome because of that.

      If you are lawfully allowed to be in the school (picking up a kid, meeting with faculty etc) then you can legally carry.

      Being that its concealed and legal, I don’t see why anyone would tell anyone or why they would ask in the first place.

  6. I would hope the judges in Alabama would decide for Second Amendment freedom and that the Second Amendment is at least as fundamental as the First, if that is the question. However, I have seen what I thought to be states with conservative and fundamental judges decide against democracy as voted for by the voters for traditional marriage, and that did not matter to them. If the same thing happens here, the vote will be compromised and negated.

    • A) Judges deciding against unconstitutional stuff even if they are popular is the entire point. That way your constitutional rights are defended even if they are unpopular (see your first amendment reference).
      B) The defeat of traditional marriage proposals is an example of exactly the opposite of what you are saying. The right of these people to do as they please in their personal life is not and should not be subject to restrictions because of other peoples beliefs and-or feelings , just like your right to be armed should not be restricted because other people have a problem with guns. It jives with the whole land of the free thing 😉

      • Have to agree with George on this one. That is, IF I have followed the arguments correctly. Getting a bit twisted in my head at this point. But, I basically agree that the legal institution of marriage should not be restricted due to the beliefs of others. IE: the legal rights that one obtains from a marriage should be the same for any two consenting adults, regardless of their sex. And it follows that the same concepts should apply to my right to own, carry and use a weapon. Both are instances of how the rights of any citizen should not be based on the beliefs of others. The pit bull issue or breed restricting laws are another example of the restriction of one person’s (or a group’s) rights due to the beliefs of others. Basically all these are B.S. IMO. The Land of the Free means exactly that. A citizen is supposed to have the right to do what they want as long as it does not adversely the rights or safety of others. So simple yet the lawmakers want to make it complicated to fit their own beliefs or desires.

  7. Even though First Amendments restrictions are subject to strict scrutiny, challenges are often rebuked. The type of expressions where strict scrutiny means the law almost certainly will be struck down involve political speech. Political speech is pretty much sacrosanct. Non-political speech is fair game, and many challenges to such laws fail even when strict scrutiny is applied.

    In other words, strict scrutiny is good for 2A, but it’s no panacea. Strict scrutiny is a high bar, sure, but it’s a bar that is often hurdled. Strict scrutiny is not a death sentence for any law.

    • But aside of the aforementioned potential cost increases, are there any other real drawbacks to encouraging/requiring a strict scrutiny standard to Second Amendment-related laws/policies?

      If not, I’m completely on-board with it.

      • Oh, I agree. Strict scrutiny of 2A restrictions is a good thing, and it should be universal. I’m just saying that it isn’t a magic wand.

    • Ralph is correct. Strict scrutiny can be hurdled. Things like gun permits and such would most likely pass strict scrutiny provided that they were quick, fair and efficiently handed out (see political protest permits as an example). But the reason a lot of 1A challenges survive, is because most of the restrictions are nothing like what is put on the 2A. Strict scrutiny would throw out any and all weapon and mag bans pretty much. Permit delays would not be allowed to exist. Waiting periods are gone, period. Etc… If the 2A was treated like an actual right by the courts, then not many regulations that would adversely affect gun owners would exist (save taxes and fees). For more information on this, read this paper by Alan Gura that was in the Harvard Law Review:

      http://harvardlawreview.org/2014/04/the-second-amendment-as-a-normal-right/

  8. I’m curious if you have any opinion on how this might affect my situation:

    I work for an Alabama municipality which has forbidden me to have my lawfully owned and permitted firearm with me at work. I work in a museum…it is a public building, not private property. It has recently been deemed a “gun free zone”… but I don’t think it could be considered a sensitive area like a courthouse or town hall might be. I believe the decision to disarm me is arbitrary and does not meet the “strict scrutiny” requirement of the new constitutional amendment.

    Can I look forward to this restriction being lifted ?

    • Perhaps try contacting your local Senator/Congressperson, and asking them to mention it to the Museum or its governing board, without involving your name?

      I wouldn’t be surprised if they try to invoke an educational or “kids clause”, though, if the museum is ever used by groups of schoolchildren.

    • Contact the office of State Representative Scott Beason. Inform him that you are being deprived of your Constitutional rights under the newly amended State Constitution of 1903. Be the first one on your block to have an unfair and arbitrary gun “ordinance” struck down under the new Amendment!

  10. Strict scrutiny was invented in the middle of the 20th Century by the Warren Court to allow judges to weigh the benefits of individual rights against their costs to society (i.e., the government). In other words, it was created by judges so that they could rule in favor of the government whenever they felt that the exercise of a particular right was just too troublesome.

    Indeed, the entire doctrine of tiered scrutiny (strict, intermediate and rational) is all about permitting judges to balance individual rights against government interests.

    If activists in Alabama (or anywhere else) truly want to strengthen their state constitutional protections for armed self-defense, they should instead employ language such as “fundamental” and “absolute.” They should also refrain from referencing the “right” to do something in favor of specific verbs, such as purchase, transfer, possess and carry, etc.

    Sadly, these mistakes could have been avoided if an actual constitutional law scholar had been consulted.

    • All too true. “Strict scrutiny” is just a fancy term judges use to make it sound like they have a good enough reason to ignore what the Constitution says.

    • the new amendment does state that the citizens’ right to keep and bear arms is a “fundamental” right.

    • If you read it, the amendment does employ your desired “fundamental” language. In fact it adds “fundamental” twice, where it did not exist before.

  11. How does this new “2nd Amendment” differ from what we already have and which is the better and the stronger?:

    Alabama Constitution of 1901 Article I. Declaration of Rights Section 26.
    Right to bear arms
    That every citizen has a right to bear arms in defense of himself and the state.

    Thanks.

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