Applying the Undue Burden Standard to Restrictions on Gun Rights

In my last post I criticized the emerging Second Amendment standard of review and specifically the decision in Heller II, to channel into “Scrutiny Land”, a straightforward gun ban question that might have been decided under a more objective common use standard. More broadly I questioned whether scrutiny analysis is a true substantive filter or a screen for something less savory.

In this post I consider another possible standard of review, the undue burden standard from the abortion cases, and use it to sharpen my earlier point about the common use standard.   

The undue burden standard is a seemingly apt tool for deciding Second Amendment questions. The Ninth Circuit in Nordyke v. King (2011) and Judge  J. Harvie Wilkinsen both have invoked the abortion rights analogy in post Heller treatments of the  Second Amendment.  Also, I have demonstrated the parallels between abortion rights claims and the right to armed self-defense in two separate assessments that highlight how both situations pit the right-claimant against substantial competing life-interests. (Rutgers L. Rev and Hastings L. J.)  Moreover, abortion rights commentators have repeatedly and aggressively used self-defense themes to construct or sustain the abortion right (e.g., Judith Thompson’s classic self-defense analogy equates the fetus to rapidly growing trespasser who threatens to crush the mother against the walls of her own house.)  Both rights also present a tragedy of competing interests; neither the mother nor the armed self-defender wishes to destroy another life-interest but is pushed to it by its exigency.

Within the abortion / gun rights intersection, there is a particularly salient comparison that advances the point from my last post, where I criticized Heller II’s treatment of D.C’s  AR-15 ban. (The majority found the AR-15 to be a gun in common use but still upheld the ban under intermediate scrutiny).  The AR-15 question finds an especially fitting and telling analog in Justice Breyer’s opinion in Stenberg v Carhart overturning Nebraska’s “partial birth abortion” ban. (Stenberg was weakened by Court conservatives in Gonzales v. Carhart, but the lesson here is in Breyer’s opinion).

The comparison between the banned D&X abortion procedure in Stenberg and the AR-15 ban in Heller II  is fitting, both analytically and politically. From the view of the opposition, both “assault weapons” and “partial-birth abortion” (both loaded political terms to which supporters of the rights object) are extreme manifestations of the contested right.  Both are contrasted to other less controversial manifestations of the broader right, and those alternatives feed arguments that the right can be respected without permitting these especially aggressive, unnecessary, or unjustifiable renditions. As a quantitative matter, both represent a fraction of what opponents object  to.  Both are vigorously defended by supporters on the view that the constitutional protection is fragile and that defeat in this limited context would not end the controversy, but just embolden opponents who oppose the right absolutely. Both prompt analysis that many people find repugnant – e.g., graphic depictions of late term abortion procedures or discussions of comparative firearms lethality.

In Heller II the court suggested that banning the AR-15 was constitutional because lots of other guns, particularly handguns explicitly protected by Heller, remained available.  Now consider the parallel abortion rights question.  In Stenberg, Justice Breyer wrote to affirm a woman’s right to the abortion methodology best suited to protect life and health, even when lesser but still safe alternatives are available. This, in principle, is the AR-15 question: can the state ban commonly owned guns that in some circumstances are the best self-defense options, on the excuse that other guns remain available?

At various stages, in finer levels of detail, Justice Breyer answers the parallel abortion question in ways that seem to render substantive principles that transfer readily to the Second Amendment context. Here are some of the most notable ones.

Availability of Alternatives. Breyer flatly rejects the assertion that the constitutional right to abortion is adequately respected by the availability of safe alternatives to the disputed D&X procedure. Where woman’s life or health is at stake, says Breyer, she is entitled to the superior abortion procedure.  Even post-viability, the state’s interest in the fetus must give way to judgments that the procedure is necessary to preserve the life or health of the mother. This protection of  better methodologies for exercising a core constitutional right speaks squarely to the self-defender’s parallel interest in the best commonly owned firearms for particular categories of self-defense.  These categories might vary by the nature of the threat or the status of the victim.  Thus, for people who cannot manage the weight or recoil of a heavier, more powerful shotgun, or the hand strength and dexterity demands of the handgun, the AR-15 (or if that image is too inflammatory wade in by visualizing the more prosaic M-1 carbine) may always be the better alternative.  (For those unfamiliar with the technology, operating the slide on a Semiautomatic or the pulling the double action trigger on a revolver are more difficult than operating the charging handle on a carbine like the AR-15 or M-1 and long guns braced by two hands and a shoulder are easier to shoot accurately than handguns, braced only by one or two hands.)

Rarity – The state argued in Stenberg that the D&X procedure was not a protected methodology because it was very rarely used.  Rarity of the procedure, said Justice Breyer, “is not highly relevant.”  The deciding focus is those occasions that “could strike anyone” where D&X is the best methodology. “The State cannot prohibit a person from obtaining treatment simply by pointing out that most people do not need it.”

In the gun context, this answers the criticism that circumstances where the AR-15 would be optimal may be rare – e.g., disorder following a natural disaster. Under Breyer’s “rarity” analysis, the deciding factor is that the AR-15 has special utilities in particular scenarios. Thus the state cannot not deny right-bearers who might require the distinct utilities of the AR-15 on the argument that “most people do not need” them.

Breyer takes the point a step further, acknowledging that rarity might reflect that D&X truly has no special utility. Empirically there was strong evidence to support this, but the Court resolved to err in favor of the right-bearer.  Extending this presumption to the gun context,  even if there is dispute whether the AR-15 is a better choice for people who cannot be proficient with other guns, Stenberg principles dictate that plausible claims that the AR15 is sometimes optimal should trump gun bans.

Is the Disputed Methodology Never the Best Option? – The empirical debate over whether D&X is ever the best alternative for saving the life or health of the mother sharpens the core message of Stenberg: If the state can show that the contested methodology is never the best option for protecting life or health, then the partial-birth abortion ban is permissible.  The Second Amendment claimant’s burden is comparatively easier because firearms utility is easier to quantify. Partial-birth abortion utility is controversial because of disputes between doctors that are in part subjective – a function of what method particular doctors prefer. Assertions of AR-15 utility – lower recoil, intermediate ballistics (less lethal than standard deer rifles) – are grounded on objectively measurable physical characteristics.

Dismissing Irrational Distinctions –  Justice Breyer argued that the Nebraska statute did not really further the state’s asserted interest in the “potentiality” of human life; that it is not geared to actually save any particular fetus from destruction because it only affects a rare method of abortion and abortion by other methods is freely available.  Thus the rationale for the partial-birth abortion ban was illusory because abortion is a broadly protected constitutional right that unquestionably could be exercised through alternative means. Justice Stevens’ concurrence put the point more bluntly, arguing that the Nebraska statute was not even rational because there is no reason to believe that the banned procedure was any “more brutal, more gruesome, or less respectful of potential life'” than the permitted procedures.

Here Stevens and Breyer echo almost exactly Judge Kavanaugh’s dissent in Heller II (that it was incoherent ban semiautomatic rifles but not semiautomatic handguns that accounted for the bulk of gun crime) as well as criticisms that I and others leveled at aspects of the 1994 Assault Weapons Ban.  Banning the AR-15 and exempting a large residual category of visually-distinct but functionally indistinguishable guns was incoherent as a crime control or safety measure.  The “assault weapons” distinction is incoherent because multiple other guns remain available, all of them are similarly deadly, many of them are objectively more lethal than the assault weapon, and an entire category of explicitly constitutionally protected guns (handguns) account for the vast majority of gun crime. Tracking Justice Stevens’ Stenberg argument, how does a ban on semiautomatic rifle with pistol grips and folding stocks serve the state interest in limiting firearms externalities when functionally identical and far more destructive guns are explicitly permitted in the same legislation and are otherwise constitutionally protected?

So here is the question.  Is the undue burden standard inherently more protective than the burgeoning Second Amendment standard of review?  Did the administration of that standard in Stenberg yield principles that Breyer for example would feel compelled to apply to parallel claims involving other individual rights?

We know of course that Breyer dissented in Heller and it is unlikely that the Court will face a Second Amendment claim directly invoking Stenberg standards any time soon.  Perhaps, faced with the AR-15 question, Breyer actually would say that the principles he articulated in Stenberg are inherent in undue burden analysis and transcend the abortion question.

If I thought this were likely, I would urge Stenberg’s undue burden standard as a  far more protective approach than the burgeoning Second Amendment standard of review articulated in Heller II?   But my cynical estimate is that Breyer would not apply Stenberg standards to parallel Second Amendment claims.   And one can certainly imagine how the Heller II panel could have upheld the AR-15 ban reasoning loosely from the phrase “undue burden”.  The point is that these secondary filters are nebulous enough to allow judges to favor the rights they like and undercut the one’s they don’t.   And this underscores my last post.  Where we can, we should avoid these secondary filters in favor of more objectively testable standards.  For flat gun prohibition cases, that means the common use standard.

Reader Discussion

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on October 25, 2012 at 22:40:16 pm

The problem with any analogy between guns and abortion, is that what makes abortion objectionable to many people is the belief that it directly involves killing somebody. Whereas what the laws we are discussing here, (Laws against shooting people, let alone killing them, are not generally called "gun control".) do not involve any such direct consequence, and only a statistically very attenuated claim to the indirect consequence; Even the most reviled firearm in the civilian market will only rarely be used for wrongful purposes, and yet the proposed laws will regulate mere harmless possession, not wrongful use.

This makes the analogy between abortion regulations and gun control fairly weak, and not in favor of the regulation of guns, either. The gun laws are actually analogous to banning some article mostly used for other purposes on the basis that it might have some occasional use in abortion. Say, banning forceps or suction apparatus because they're occasionally used in partial birth abortions, even though most uses are entirely innocent.

It's a terrible analogy, save that it demonstrates that the case for gun control is far, far weaker than the case for restrictions on abortion.

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Brett Bellmore
on October 27, 2012 at 17:28:32 pm

The ban on the so called assault rifle can be easily (actually has been easily) countered simply by calling the firearm product something else. It is functionally still the same firearm, a semiautomatic, magazine fed shoulder fired rifle in a variety of calibers, but it is no longer defined by the terms of the law which banned its predecessor.

Can the same be done to abortion?

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B Dubya
on October 27, 2012 at 17:38:24 pm

Legal practitioners often tell lay people that we do not understand how the law works. That may be true, but I believe that legal folk need to remember what the law is for -- to serve The People. A foundational law which is so obviously and clearly breached by the state does not so serve. In the end, such breaches serve only to delegitimize the entire legal structure.

The relevant part -- the independent clause -- of the Second Amendment commands that "the right of the people to keep and bear arms shall not be infringed." This is an absolute proscription which mandates that the nation as a whole must be organized that "no free man shall be precluded the use of arms." (Thos. Jefferson)

There is no limit to the right except as its exercise shall cause the infringement upon the rights of another citizen. There can be no "compelling public interest" which diminishes the liberty of any man, save only he do harm to another. Seems assault and murder laws handle that quite well.

All the rest of the legal mumbo-jumbo amounts to an affront to liberty, which not only violates the letter of the Second Amendment, but the entire spirit of the foundation of the Republic. It is, not to put to fine a point on it, not only unconstitutional, it is un-American.

The attentions of attorneys and judges should be better directed toward reifying THAT truth than all this other persiflage.


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Mark Alger
on October 27, 2012 at 20:22:25 pm

The Second is not about hunting, or self defense. Is is for physically opposing state power. It is armed power, by weapons against the state and its agents.

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Paul C
on October 27, 2012 at 21:11:30 pm

"Legal practitioners often tell lay people that we do not understand how the law works."

This is a sure sign that our country is doomed. If law cannot be understood by those required to follow it, then we no longer have rule of law.

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Image of DocMerlin
on October 28, 2012 at 17:11:39 pm

"In Heller II the court suggested that banning the AR-15 was constitutional because lots of other guns, particularly handguns explicitly protected by Heller, remained available."

Curiously, past courts have rightly understood such an approach to be anathema:

One is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.
--SCHNEIDER V. STATE, 308 U.S. 147, 163 (1939).

Then again, governments have routinely violates this exact proscription without penalty in instituting "free speech zones" away from the protestable event in question… so whether or not the Court recognizes our rights is reduced to meaninglessness.

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Henry Bowman
on October 29, 2012 at 11:10:05 am

As Mr. Bellmore pointed out, your argument is very weak due to the vast difference between the two situations. Abortion is an issue fraught with arguments about the taking of an innocent life, the rights of the mother over the child, and countless others. Gun Control is about the governments ability to restrict the ownership of private property. Both situations use terms to sugarcoat positions, but in the end the fundamental differences between them remove all the validity of comparing them to each other.

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James Flowers
on October 29, 2012 at 11:35:52 am

Taking Henry Bowman's analogy a bit further, could the State ban my King James Bible on the grounds that it "lets" me keep a New American bible?

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Mike V.
on November 09, 2012 at 11:21:37 am

I posed here a basic test of fair and neutral decision-making – are we treating like cases alike. The first step is establishing “like cases”. Substitute self-defense technology for abortion methodology and the questions are very much the same. The indications that court liberals would apply the undue burden standard very differently in the abortion and gun cases suggests that these secondary filters impose on real or predictable boundaries. For more detail on the analogy between armed self-defense and abortion claims see my 1997 article, Principles and Passions: The Intersection Between Abortion and Gun Rights available at http://www.guncite.com/journals/njinter.html

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Nick Johnson

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