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January 24, 2012

Vartelas v. Holder and the retroactive application of the 1996 immigration amendments

Cross-posted from SCOTUSBlog.

On January 18, the Supreme Court heard oral arguments in Vartelas v. Holder, a case raising the question whether the U.S. government can, based on a 1996 amendment to the immigration laws, bar a lawful permanent resident from returning to the United States after a short trip to Greece to visit his parents.  The central issue in the case is whether the 1996 amendment can be applied retroactively to a pre-1996 criminal conviction.  For the argument preview, see here.  Here is the transcript of the argument.

Criminal law expert Professor Stephanos Bibas of the University of Pennsylvania Law School’s Supreme Court Clinic argued the case for the petitioner.  Professor Bibas was co-counsel on the landmark decision in Padilla v. Kentucky (2010), in which the Court held that an ineffective assistance of counsel claim could be based on an attorney’s failure to inform a noncitizen of the immigration consequences of his criminal conviction.  Assistant to the Solicitor General Eric Miller argued the case for the United States.

The arguments focused on the retroactive application of Immigration & Nationality Act § 101(a)(13)(C)(v), which was added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and defines an “admission” into the United States.  Under the new sub-section, the U.S. government sought to bar Vartelas from returning to the United States based on his conviction for a “crime involving moral turpitude.”   Importantly, Vartelas would not have been subject to deportation if he had not left the United States.  Moreover, before 1996, he probably would have prevailed in returning unimpeded from the short trip.

In INS v. St. Cyr (2001), the Supreme Court held that the repeal of a form of relief — known as Section 212(c) relief — from removal by the 1996 immigration reforms could not be applied retroactively to bar a legal immigrant from seeking such relief for which he would have been eligible when he entered the plea.  In its analysis, the Court weighed heavily the immigrant’s reliance on the availability of Section 212(c) relief at the time he entered the plea.  Much of the questioning of the Justices at the oral argument in this case concerned the application of St. Cyr – for example, Chief Justice Roberts specifically asked Miller how St. Cyr was distinguishable from this case.

Early in the argument, Chief Justice Roberts expressed the opinion that the time to look at reliance on the law was at the time of the commission of the criminal offense.  Petitioner’s counsel, however, seemed to persuade the Court that, under the circumstances of this case, the appropriate time to evaluate reliance was at the time of the plea, when the immigrant defendant must weigh all of the ramifications (including the possibility of visiting family and friends in their native country) of a criminal conviction.

Several Justices asked questions about whether, when he entered the plea in 1994, Vartelas would have relied on the then-current state of the law concerning travel outside the United States.  The Justices pressed Miller on whether an attorney would have advised Vartelas at the time of the plea that he could leave and return to the United States.

At various times in the argument, the complexities of the statutory provision at issue seemed to befuddle the Justices.  Justice Ginsburg questioned Miller about why the statute focused on entry into the United States when Congress’s real concern was with noncitizens with criminal convictions.  Justices Ginsburg and Sotomayor emphasized that the 1996 amendment added punishment to an immigrant’s criminal conviction, imposing a new “disability” on the noncitizen, and that the U.S. government sought to impose this penalty retroactively.

Chief Justice Roberts seemed genuinely perplexed by the statutory language, which is a common reaction of many judges to the provisions of the Immigration and Nationality Act.  He grappled with why Congress would not admit a noncitizen for a crime but punished a lawful permanent resident convicted of that crime by requiring that he remain in the country.  The Chief also asked Miller to offer a policy justification for barring a lawful permanent resident from leaving the country for a few days to attend a family member’s funeral.

It is hazardous to speculate about the outcome of a case based on oral arguments.  Nonetheless, here are my conjectures.  Justices Scalia and Alito generally seemed unsympathetic to the petitioner’s arguments.   As is his custom, Justice Thomas did not ask a question; Justice Kennedy only chimed in briefly and it was hard to read where his leanings were.  Justices Ginsburg, Breyer, Sotomayor, and Kagan appeared concerned that Vartelas might well have considered his right to travel under the law in 1996 when he accepted the plea.  Finding the statute and its justification somewhat mystifying, Chief Justice Roberts seemed unsympathetic to the U.S. government’s positions.  I would say that Vartelas stands a fair chance of prevailing on the retroactivity argument.

In deciding the case, the Court seems unlikely to address any questions broader than the application of the 1996 statutory amendment.   Because the issue rarely was mentioned in the arguments, and the parties do not contest the issue, it seems unlikely that the Court will address whether Immigration and Nationality Act § 101(a)(13)(C)(v) overruled Rosenberg v. Fleuti (1963), which held that an “innocent, casual, and brief” trip from the country did not subject the returning lawful permanent resident to treatment as seeking admission.  Nor does it appear the Court will address more broadly the constitutional rights of lawful permanent residents.  Rather, like Judulang v. Holder decided in December, the Court is likely to decide Vartelas v. Holder on relatively narrow statutory grounds.

 

 

January 17, 2012

Argument preview: The rights of lawful permanent residents returning to the U.S.

Cross-posted from SCOTUSblog.

The Supreme Court soon will again turn its gaze to a complex immigration case involving a long-term lawful permanent resident of the United States facing deportation.  Just last December, the Court in Judulang v. Holder rejected as arbitrary and capricious the ruling of the Board of Immigration Appeals that a lawful permanent resident convicted of a crime was not eligible for relief from deportation.  On January 18, in Vartelas v. Holder the Court will hear oral arguments in a removal case that raises an issue that has confounded the courts, namely, how the immigration laws and the U.S. Constitution apply to lawful permanent residents (i.e., legal immigrants) who leave the United States and then return.

Legal Background

The Immigration and Nationality Act of 1952 (INA) is this nation’s omnibus immigration law.  In 1996, Congress, as it has repeatedly over the years, amended the INA and enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), a piece of enforcement-oriented immigration legislation.  Through a variety of mechanisms, the Act seeks to facilitate the removal of “criminal aliens.”  The operation of IIRIRA has contributed to the record number of removals of non-citizens by the U.S. government in recent years (as well as large numbers of appeals of removal orders).

As a legal matter, under both the INA and the Constitution, the procedure, rights, and available relief historically have turned on whether a non-citizen was seeking entry into the United States or facing removal from the country.  Before 1996, the Supreme Court’s precedent was relatively clear.  Non-citizens denied entry into the country were subject to “exclusion” proceedings with no, or limited, due process rights.  The Supreme Court has held that the U.S. government has “plenary power” over the rules and procedures for admission of non-citizens to the United States.  In contrast, non-citizens facing deportation from the United States were placed in “deportation” proceedings, where they possessed a much fuller panoply of due process protections.  The differential legal treatment was justified by the fact that non-citizens facing removal ordinarily have deeper family, community, and other ties with the United States than non-citizens seeking admission into the country.

In 1996, Congress collapsed exclusion and deportation proceedings into one “removal hearing.”  However, that change in the law did not alter the differential constitutional protections available under relevant Supreme Court precedent depending on whether the non-citizens were seeking entry into or, alternatively, facing removal from the United States.

The courts, including the Supreme Court, when addressing the case of a noncitizen who fails to fit neatly into the established legal categories, such as when a lawful permanent resident who has lived in the United States for many years — and thus has significant community ties – travels outside the country and seeks to return.  Given the ties that these lawful permanent residents generally have to the community, courts frequently have been reluctant to impose on them the stricter rules applicable to initial entrants.

In Rosenberg v. Fleuti (1963) a lawful permanent resident from Switzerland visited Mexico for a few hours and, upon his return, was charged with being excludable because he had committed a “crime involving moral turpitude” before he left the country; the U.S. government later claimed that he was also excludable because he was homosexual.  To avoid a harsh result, as well as to avoid deciding difficult constitutional questions, the Supreme Court interpreted the immigration statute to mean that Fleuti’s “innocent, casual, and brief” departure from the United States was not “meaningfully interruptive” of his lawful permanent residence and thus he was not seeking “entry” (and thus admission) into the country.  Under the Court’s reasoning, Fleuti therefore could not be denied admission on the exclusion grounds applicable to initial entrants.

The Case of Panagis Vartelas

In 1979, Panagis Vartelas, a native of Greece, came to the United States on a student visa to attend Queens College.  After marrying a U.S. citizen in 1985, he became a lawful permanent resident in 1989.  Vartelas and his wife, who later divorced, had two U.S. citizen children.  He owned an auto body shop in Queens, New York.  After his arrest on charges that he had assisted his business partner in preparing counterfeit traveler’s checks – conduct for which he did not receive any economic benefit, he pleaded guilty in 1994 to conspiring to make or possess a counterfeit security in violation of federal law and was sentenced to imprisonment for four months.

In 1996, Congress added Section 101(a)(13)(C)(v) to the INA.  That statute provides that a lawful permanent resident who returns from a trip out of the United States “shall not be regarded as seeking an admission” unless he “has committed an offense identified in” Section 212(a)(2) of the INA, which includes crimes involving moral turpitude.  The change in the law helped lawful permanent residents without criminal convictions who traveled abroad because it did not treat them as seeking admission (and thus like initial entrants subject to the inadmissibility grounds).  The amendment was no help to Vartelas, however.  Because counterfeiting is a crime of moral turpitude, a ground for inadmissibility, Vartelas was inadmissible under Section 101(a)(13)(C)(v) of the INA.

On January 29, 2003, Vartelas returned to the United States from a week-long trip to Greece, where he had gone to assist his parents with their business.  An immigration inspector questioned him about his 1994 criminal conviction.  Vartelas later was served with a notice to appear for removal proceedings on the ground that he was inadmissible as an alien who sought entry into the United States after being convicted of a crime of moral turpitude.  Under the applicable law, he would not have been subject to deportation if he had remained in the United States and had not left the country to visit his parents in Greece.

The immigration court ordered Vartelas removed from the United States.  The Board of Immigration Appeals (BIA) agreed.   The Second Circuit denied the petition for review of the BIA ruling. The court of appeals agreed with the Board that the 1996 amendments had abrogated the Court’s holding in Rosenberg v. Fleuti.  The Second Circuit further concluded that application of Section 101(a)(13)(C) (v) to Vartelas’s 2003 trip to Greece was not impermissibly retroactive.  In so doing, the court of appeals recognized that its holding was contrary to that of the Fourth and Ninth Circuits.

Cert. petition

Identifying the split in the circuits on the question, Vartelas filed a pro se petition for writ of certiorari in the Supreme Court.  The U.S. government opposed the petition:  in addition to defending the Second Circuit’s application of the statute, it argued that “the issue is of limited significance, as it involves the applicability of a statutory repeal and amendment that occurred more than 15 years ago and has precipitated only a handful of cases.”  The Court granted certiorari.

Merits briefs

In his brief on the merits, Vartelas argues that the application of the 1996 amendment to his case is unconstitutionally retroactive under the Court’s 1996 decision in Landsgraf v. USI Film Products . Assuming that the 1996 amendments abrogate the Court’s holding in Rosenberg v. Fleuti, he challenges the Second Circuit’s retroactive application of Section 101(a)(13)(C)(v).  If the Court concludes that the section does not apply, Vartelas can then argue under Rosenberg v. Fleuti that his trip to Greece was not “meaningfully interruptive” of his presence in the United States, such that he would not be subject to the inadmissibility grounds.

Petitioner contends that, under the test articulated by the Court in Landsgraf, Section 101(a)(13)(C)(v) should not be applied retroactively to lawful permanent residents, like him, who committed offenses before 1996.   First, Congress did not clearly state that the statutory provision applies retroactively.  Second, if applied to lawful permanent residents who committed offenses before its enactment, Section 101(a)(13)(C)(v) would impose a substantial new penalty upon them for their pre-1996 offenses that would be contrary to their reasonable reliance on the state of the law when they pleaded guilty.

Relying on the language of Section 101(A)(13)(C)(v), the U.S. government contends that it means that a lawful permanent resident who has left the country and returns is an applicant for “admission” if he or she has “committed an offense” that would constitute grounds for inadmissibility.  Vartelas’s criminal conviction thus falls within the statute, and he can be denied admission.  The Second Circuit correctly held, the government argues, that the 1996 amendment applies to all returning aliens, including those convicted of crimes before 1996.

Moreover, it contends, the Landsgraf test does not apply.   First, the statute applies only to non-citizens who engage in conduct – travel outside the United States – after the passage of the new law.  The government further emphasizes that non-citizens have no vested right to enter or reenter the United States, and “Congress possesses plenary power to regulate immigration by preventing aliens from entering the United States.”  The government bolsters it argument by contending that non-citizens could not have reasonably relied on pre-1996 law in deciding to commit crimes.

Possible implications of Vartelas v. Holder

This case requires the Supreme Court to return to the task of clarifying an incredibly complex immigration statute.  As it has in recent removal cases, the Court will likely limit itself to the interpretation and application of the 1996 amendment to the Immigration and Nationality Act, the issue that is squarely before it.  Along those lines, the Court earlier this Term in Judulang v. Holder (2011) grappled with a slightly different question but one that arose as a result of the historical distinction in U.S. immigration law between exclusion and deportation proceedings.

The Court’s decision in the case should shed light on the way that the law treats lawful permanent residents returning from trips outside the United States.  My best guess, however, is that the Court will not address broad questions of the constitutional rights of lawful permanent residents returning to the United States.  In addition, because the parties do not dispute the issue (and as one amicus brief supporting Vartelas suggests), the Court need not address the continuing vitality of Rosenberg v. Fleuti, which through innovative statutory analysis avoided difficult constitutional questions concerning the rights of lawful permanent residents returning to the United States.

The case also highlights more general issues surrounding U.S. immigration law.  The immigration laws and the courts continue to grapple with difficult constitutional and statutory issues as the law increasingly moved toward facilitating removal of “criminal aliens.”  Time and time again, the legal issues raised by efforts to remove long-term lawful permanent residents, like Panagis Vartelas, have bedeviled the courts.

January 11, 2012

What Will the Right to Keep and Bear Arms Mean in the Coming Years?

This is part one in a two-part series, co-authored with Professor Alan Brownstein, for Justia's Verdict on the ways in which lower courts and the Supreme Court will need to flesh out Second Amendment doctrine.

One of the big constitutional issues that will be discussed and litigated over the next decade, and one that may figure prominently in the election this fall, is precisely what leeway Congress, states, and localities have to regulate firearms ownership and use consistent with the Supreme Court’s recent declaration that the Second Amendment includes an individual constitutional right, at least under some circumstances, to keep and bear arms.

In a series of columns beginning with this one, we explore and analyze some of the major Second Amendment issues confronting the lower courts—and soon the Supreme Court.  In this installment, Part One of the series, we provide the background necessary to appreciate some of the cutting-edge questions that we will then take up in more detail in Part Two, here on Justia’s Verdict, in a few weeks.

The Heller Bombshell

In 2008, in District of Columbia v. Heller, the United States Supreme Court determined, for the first time in over two centuries, that the Second Amendment protects an individual and fundamental right to keep and bear arms. In doing so, the Court struck down local gun control regulations in DC that prohibited the possession of a handgun in one’s home, and required any firearm in one’s home to be “unloaded and disassembled or bound by a trigger lock.” Two years later, in McDonald v. City of Chicago, the Court concluded (as everyone expected it would, after the landmark Heller ruling) that the Second Amendment limited not only the federal government (as in DC), but also the states and localities, by way of the Fourteenth Amendment’s incorporation doctrine.

Identifying the existence of a right is one thing. Developing doctrine to guide the resolution of cases involving alleged abridgements of the right is quite another. In its two recent cases, the Court—by its own admission—has done little to assist the lower federal courts and state courts in deciding Second Amendment disputes.

Not surprisingly, there has been a flood of such disputes. Indeed, given the extraordinary ambiguity of the Heller opinion, it is difficult to understand why anyone convicted of a gun offense would not raise a Second Amendment defense to the charges against him. Courts have confronted challenges to laws that:  prohibit the possession of firearms with obliterated serial numbers; ban persons convicted of misdemeanor domestic violence from possessing firearms; deny firearms to felons; prohibit the carrying of loaded handguns within a national park; prohibit the carrying of a loaded firearm outside one’s home or place of business; require the registration of firearms and require firearms training as a condition of registration; and prohibit gun shows in which firearms are sold on county property.  And these are just a few of the claims raised to date.

To put things mildly, constructing a legal framework for evaluating these and other claims has been a challenge to lower courts. Certainly, the reasoning and analysis of judicial opinions in this area have been varied and conflicting. Indeed, we think it is fair to say that at the current time, no one really knows how Second Amendment cases should, or will, be adjudicated. Doctrine in this area is a work in progress. Numerous issues remain unclear and unresolved.

The Guidance Heller Does, and Does Not, Provide

The Court in Heller was clear about a few things. It left no doubt that the Second Amendment right to bear arms was grounded in the self-defense of one’s person and one’s home. And it made clear that the language in the first clause of the Second Amendment about “a well regulated Militia being necessary being necessary to the security of a free State” has no bearing on the meaning of this constitutional provision. Thus, according to the Court, the utility of a weapon for militia or military purposes has no relevance to whether possession of the weapon is protected by the Second Amendment.  Handguns are covered because of their utility for self-defense purposes. Machine guns are not covered, notwithstanding their greater utility for state security purposes.

The Court was also adamant about the standard of review that would not apply to gun control regulations. Rational basis review—in which a law needs to be only minimally rational to be upheld—was inappropriate, because it is too deferential to protect a “fundamental” right.

Further, in responding to Justice Breyer’s dissenting opinion, the Court emphatically rejected the argument that restrictions on the right to keep and bear arms should be evaluated under a “freestanding ‘interest-balancing’ approach.”  The “core protection” of other fundamental rights—such as the right to free speech—was not subject to such a case-by-case analysis. Indeed, the recognition of an interest as a fundamental right reflected the exact opposite understanding.  In adopting the Second Amendment, the People had already engaged in a basic balancing of interests and concluded that the right to firearms deserved special protection from government interference. New attempts to rebalance the right’s value against competing state interests were foreclosed by this earlier constitutional determination.

While the Court was somewhat clear in describing the wrong way to evaluate Second Amendment claims, it was much less helpful in discussing how Second Amendment cases should be correctly adjudicated.  The Court explained that it did not need to discuss the various standards of review that might be applicable because the D.C. regulations before it were so obviously unconstitutional and inconsistent with Second Amendment guarantees that they would be struck down under “any of the standards of scrutiny” previously applied in fundamental rights cases.

Perhaps the Court would have been better off stopping there and giving lower courts the first crack at the daunting task of developing Second Amendment doctrine from scratch. But it did not. Instead, it went on to make a number of observations about how the doctrine should unfold, and in doing so, it created considerable confusion—making an already difficult job for lower courts almost impossible.

The Court started sensibly enough by acknowledging that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.”  But then it proceeded to identify some, but not all, of those limits by way of a flimsy—indeed conclusory—summary of historically accepted restrictions on firearms: “[N]othing in our opinion should 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 firearms.”

Further, the Court indicated that this list of limits was neither complete nor absolute:  “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.”  Indeed, in an isolated comment, later in its opinion, the Court casually added another limitation to its list, saying that its holding should not be understood to suggest that “laws regulating the storage of firearms to prevent accidents” were unconstitutional.

While some of the limits the Court imposed related to the identity of the person being regulated, or the place being regulated, or the particular activity being engaged in, other limits that the Court recognized on the right to keep and bear arms pertained to the kind of weapons encompassed by the Second Amendment. This analysis too was predicated on an abbreviated historical discussion. The Court confirmed that the weapons covered by the right were those “in common use at the time” of the Second Amendment. Thus, according to the Court, the Second Amendment “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”

In addition to identifying limitations on the right to bear arms, the Court also recognized particular circumstances and gun-user-motives where the right was at its zenith. The need to defend one’s person, family and property in one’s home was “most acute,” the Justices asserted, without providing further analysis. The importance of the right to defend one’s home was repeated several times, perhaps most notably when the Court insisted that “whatever else it leaves to future evaluation, [the Second Amendment] surely elevates above all other interests the right of law-abiding responsible citizens to use arms in defense of hearth and home.”

One Reason Heller Provides a Shaky Foundation for Doctrine:  The Lack of a Discussion of the Nature of the Permissible Limitations

It would be difficult to overstate the confusion sown by Heller.  To reiterate, the Court provides no guidance whatsoever as to the standard of review to be applied in Second Amendment cases.  And, if that were not bad enough, the Court went on to provide a list of historically accepted restrictions on the right to keep and bear arms that the Justices explicitly admitted was incomplete.

The Court’s reliance on history and tradition in this regard would not be so problematic if it had provided adequate background on the relevant history to enable lower courts to extrapolate from the list the Court provided. But here again, in response to dissenting justices’ demands for more information, the Court refused to provide additional background for its historical conclusions. Without a more detailed historical account, however, how can a lower court know, until the Supreme Court makes more transparent its approach to history in this context, when a specific gun control measure is sufficiently longstanding to limit the scope of the right?

Heller raises other conceptual and doctrinal dilemmas too. Most importantly, in discussing the limits to the Second Amendment, it fails to explain the essential nature of the limits it is describing.

Typically, rights might be limited in two ways.  First, rights are limited in the range of activity—the scope—they encompass. Not everything that communicates a message, for example, such as an act of terrorism or the display of obscene movies, constitutes speech that is protected under the free speech clause of the First Amendment. Second, rights are also limited in that that they may be outweighed by countervailing governmental interests. The use of loudspeaker for a political message is clearly protected speech, but it may be prohibited in a residential neighborhood late in the evening to further the state’s interest in providing people quiet and repose in their homes at night.

The Heller Court never explicitly identifies the kind of limitations it has in mind. One might reasonably read its emphasis on history, and its condemnation of interest balancing, as suggesting that the limitations it describes (and other unidentified traditional limitations) go to the scope of the Second Amendment right. That might support the development of doctrine that narrowly defines the scope of the right, but protects very fiercely—perhaps by the use of a strict kind of judicial scrutiny—what does fall within its coverage.

If that is what the Heller majority opinion intends, however, why does it describe these longstanding regulatory measures as “presumptively lawful” rather than clearly constitutional? Presumptions are subject to rebuttal. The parameters of a right are not.

Alternatively, the scope of the Second Amendment might apply far more broadly. The limitations recognized in Heller might reflect abridgements of the right that we tolerate because they are justified by overwhelmingly important state interests. Thus, felons may have a right to keep and bear arms for self-defense purposes, but their right to do so is outweighed by the state’s interest in preventing individuals who are prone to acting unlawfully from having access to firearms.

The problem with this reading is that many of the limitations Heller identifies are not, in fact, narrowly tailored to serve important state interests. A felon who was convicted of a non-violent crime 15 years ago may have had an unblemished record for the last 14 years and may have a home and family today. If the state continues to deny him, and all others in the class of felons, the right to keep and bear a firearm for home defense purposes, then the state’s decision could only be upheld under fairly deferential review.

One could also posit a doctrinal framework in which questions such as these are evaluated under some form of intermediate-level scrutiny requiring courts to evaluate and balance a felon’s likelihood of using a firearm unlawfully (and society’s interest in restricting his access to firearms) against the individual’s interest in possessing a firearm for defense of his or her home and family. That kind of a nuanced analysis, however, would seem to fly in the face of Heller’s emphatic rejection of ad hoc case by case interest balancing.

In some places, the Court’s opinion in Heller seems almost to imply that calling a right “fundamental” will resolve all difficult disputes about how to protect it. But surely the Court is aware that the term “fundamental right” is no doctrinal talisman. There is no uniform approach to adjudicating cases that implicate laws that are alleged to infringe a fundamental right. Free exercise rights, free speech rights, the right to have an abortion, procedural due process rights, and the right to be free from unreasonable searches and seizures are all fundamental, yet they are protected under very different doctrinal frameworks.

Another Limitation in Heller:  The Imprecision About What Laws Burden Gun Ownership or Use Enough to Even Trigger the Second Amendment 

There is yet another important omission that magnifies the problems courts confront today:  Heller says almost nothing about how courts should determine what constitutes an infringement of the right to keep and bear arms in the first place. Not all government activity that affects a right requires the state to justify its conduct. For example, a law requiring all healthcare providers to be registered with the state would not sufficiently interfere with the right to have an abortion, even though it affects access to abortion services to some extent, to warrant a due process inquiry at all.  But what kinds of burdens count under the Second Amendment?

We can derive some guidance from Heller on this question, but in the end, it is not very helpful. We know that banning the possession of handguns in one’s home violates the right to keep and bear arms because most people prefer handguns to long guns for home defense purposes and this preference can be rationalized on pragmatic grounds. Accordingly, the difference in cost and utility between handguns and long guns presumably constitutes a sufficient burden on a person’s ability to defend his or her home to warrant constitutional review. It is entirely unclear, however, what doctrinal standard might capture the magnitude of this burden, and thus enable courts to resolve infringement issues in other cases.

Moreover, there is no way to know whether a burden that infringes the right to keep a firearm for self-defense purposes in one’s home would be sufficient to infringe the Second Amendment in some other context. The Heller Court’s emphasis on home self-defense purposes is largely unexplained. True, the home is a personal sanctuary. But for self-defense purposes, it is hardly the only location where a person might need a firearm to protect herself or her family. A family might be attacked while driving in a car, visiting a mall, or picnicking in a local park. Heller does not elaborate on what, exactly, leads the Court to deem the need to possess a firearm in one’s home particularly acute.

Several answers are possible, but each has different implications for Second Amendment doctrine. Individuals are not especially subject to assault in their homes. Indeed, they are more likely to be attacked in other locations. But they may be uniquely vulnerable in their homes, because they are out of the public eye, so that third parties or the police would have less ability to intervene on their behalf. Alternatively, the state may have less of a justification for interfering with the right to have a firearm in one’s home because the discharge of the weapon in that location poses less of a risk of injury to third parties than would, say, a shootout in the mall or on the freeway. One answer goes to the strength of the right; the other, to the strength of the state’s interest in restricting the right. As is true of so many open issues related to the Second Amendment, Heller creates questions but provides no useful answer to them.

In our next installment, Part Two in this series, we will take up the ways in which some recent and important lower court decisions are grappling with all this Second Amendment uncertainty.