[Cross-posted from the Los Angeles Times]

By Vikram D. Amar and Alan E. Brownstein

The Supreme Court will hear a gun control case in December that could significantly limit the ability of state and local governments to regulate guns for public safety reasons.

The case involves a New York City regulation on transporting handguns that was repealed in July. Although that original rule is no longer in effect, for now the court has not determined the matter to be moot, so the case will move forward.

In this dispute and others, opposition to gun regulations is often grounded on the premise that once an individual interest is identified as a “fundamental” right, that interest prevails over all countervailing public concerns.

That premise is profoundly mistaken. And, importantly, it is inconsistent with the way that constitutional doctrine has developed with other fundamental rights, such as freedom of speech and freedom of religion. Second Amendment rights should be treated no more favorably, despite the political rhetoric of gun rights supporters who claim that any firearm regulation is an unconstitutional infringement on their rights.

Of course, a constitutional right does carry with it a strong presumption against government interference with that particular activity, even though the exercise of the right involves a societal cost. We protect freedom of religion, for example, even though we know that some religious practices — like pulling children out of school after the eighth grade — might be considered problematic or harmful.

But there is a critical difference between assigning a high value to a constitutional right when balancing it against social concerns, and arguing that the right necessarily overrides the public’s ability to regulate that activity in ways that may be needed to protect the community.

The doctrine surrounding freedom of speech is instructive. No one doubts that speech rights are taken seriously in America. Yet the right to free speech is not absolute and can be regulated in numerous circumstances. Courts subject government regulations that affect speech to different standards of review that balance the public’s interest against the individual’s liberty. Among factors considered are the kind of speech involved and the location and manner of the restriction.

For example, a ban on rallies on public streets in residential neighborhoods after 9 p.m. would likely be upheld even though it burdens speech, so long as the law did not discriminate based on the message rally speakers expressed.

So too with protections for personal privacy under the 4th Amendment, which prohibits unreasonable searches and seizures by the government. That amendment doesn’t bar all searches and seizures, but instead requires that such intrusions be “reasonable,” a concept that inherently involves some kind of balancing of interests. Hence, we all must endure airport security screening searches because they are a reasonable means to protect air travel safety.

The individual right to bear arms for self-defense, as announced by the Supreme Court in 2008, is likewise not unlimited. Even though the court in that case struck down a flat ban on possession of handguns that might be used for self-defense in people’s homes, it observed that states could — for historical and public-policy safety reasons — prohibit people with felony convictions or people with mental illness from possessing guns, demonstrating that the very scope of the 2nd Amendment’s protection takes account of countervailing public objectives. For instance, some states require that gun owners keep their firearms locked up if there are children living in the home, even though gun owners might prefer easier access to firearms for self-defense.

Or consider the contours of self-defense itself. A 2nd Amendment right to keep guns for self-defense does not eliminate the need for society to think about how guns should be responsibly employed, even in self-defense situations. If someone uses a gun purportedly for self-defense purposes and kills another person, the 2nd Amendment does not preclude an evaluation of whether the alleged threat was sufficient to justify the use of deadly force or whether the killing involved excessive force because reasonable non-lethal alternatives were available for the shooter to defend himself.

The national debate now has focused on proposed regulations such as background checks and assault weapons bans. Whether specific measures would be permissible under the Constitution depends on their particulars, but the big point is that particulars matter.

In evaluating gun control regulations, it’s legitimate to take into account the social harms and risks arising from individuals keeping, bearing and using firearms. Constitutional analysis of the 2nd Amendment, as with other fundamental rights, requires some kind of balancing of interests, which includes considering the state’s need to promote public safety.

Vikram D. Amar is dean and professor of law at the University of Illinois College of Law. Alan E. Brownstein is professor emeritus at the UC Davis School of Law.

[Cross-posted from the Harvard Law Review blog]

By Aaron Tang

Lost in the shuffle of a busy October at the Supreme Court—one filled with high profile developments concerning the right to abortion and the treatment of LGBT workers—was a single, ominous sentence buried away on page eleven of the Court’s first orders list of the Term: “The Respondents’ Suggestion of Mootness is denied.”  Despite its opacity, this single sentence is the clearest signal yet of the impending doom for critical gun control laws currently in force in eight states and Washington, D.C.

To back up a bit, the case in question is New York State Rifle & Pistol Association v. City of New York.  It involves a Second Amendment challenge brought by gun rights activists against specific restrictions that New York City—the respondent in the case—placed on their ability to travel with their firearms. 

The Court granted certiorari in January, which was itself a bad sign for gun control proponents—the City’s restrictions were upheld in the lower courts and no other federal court has reached a conflicting conclusion, leaving the Court little reason to take the case other than to reverse the decision below.  But the Court tipped its hand still further when it denied the City’s request to dismiss the case as moot in light of intervening city and state laws, both of which granted the challengers the exact relief they requested in their complaint.  If any of the conservative Justices were at all interested in avoiding this highly charged dispute, by far the easiest course would have been to accept the City’s Suggestion of Mootness, given that the challengers had already gotten all that they had asked for.  Their refusal to do so is a strong signal that the conservative majority is poised to issue a blockbuster ruling that will expand the right to carry guns outside the home.  Such a ruling would add insult to injury for countless communities that have been ravaged by gun violence, a number that is growing rapidly due to the striking increase in mass shootings across the nation.

But all is not lost.  The liberal Justices in the minority have a last-ditch strategy that would sacrifice the specific gun restriction at issue in this case, yet save a number of far more critical gun control measures around the county.

To see how, it’s important to start by recognizing just how narrowly the challengers framed their lawsuit, at least initially.  The suit challenges a New York City regulation requiring owners of city-conferred “premises licenses” to keep their guns inside their homes at all times, with two exceptions: to go hunting at an authorized area, or to train at one of seven shooting ranges in the city.  Without a premises license—or a far-more-difficult-to-obtain “carry license,” which requires a significant demonstration of an applicant’s individualized need—city residents are not allowed to keep guns in their homes at all.

Three individuals and the New York State Rifle & Pistol Association sued, asking for two additional, yet modest exceptions to the general restriction on travel by premises license holders: the ability to bring guns to shooting ranges and second homes outside the city.  Critically, the plaintiffs did not challenge New York’s carry license regime, which is the more significant law that prohibits most city residents (i.e., those that cannot show particularized good cause) from carrying concealed firearms in public. 

But the challengers now make clear in their brief before the Court that they are no longer interested in just the two modest travel freedoms for premises license holders.  Instead, the challengers want the Court to issue a sweeping ruling that “the Second Amendment protects a right to carry arms outside the home,” period.  Such a right, the challengers, argue, would “include” travelling to shooting ranges and second homes.  But it would also call into doubt the crucial limits New York places on who may obtain a general carry license, not to mention similar limits in place in seven additional states and Washington, D.C.  It is these general limits on public carry, in other words, that the challengers really wish to invalidate in the hopes of creating a nationwide right to carry firearms in public.  But it also the public carry limits that the City (and gun control proponents more generally) should be especially interested in defending: research shows that restrictive public-carry licensing regimes are associated with a 13%-15% aggregate reduction in violent crime.   Whether premises license holders may bring their guns to second homes and shooting ranges outside the City seems a minor issue by comparison.

Recognizing these high stakes, New York City and State officials earlier this year wisely granted the challengers the narrow relief they requested: both the City and the State enacted new laws affording premises license holders the right to bring their firearms to out-of-city shooting ranges and to second homes.  Under usual principles of constitutional law, these concessions would have mooted the case, leaving no need for an opinion on the broader contours of the Second Amendment right to bear arms.  And so, in July, New York officials asked the Court to dismiss the case.

That is the request that the Court denied in its October 7 orders list.  That decision, in addition to the likely political dispositions of the five Justices in the conservative majority, puts the four more liberal members of the Court in a difficult spot.  One doesn’t need a fancy law degree to know that, given their conservative colleagues’ refusal to duck the issue on mootness grounds, there are likely five votes to invalidate the City’s gun restriction on the merits.  But how the Court does so—and how the City loses—can make a world of a difference.   

It turns out the Second Amendment argument is not the only constitutional challenge in this case.  For understandable reasons, most observers have focused on that argument, since it is that constitutional provision that can trigger the greatest upheaval in local and state efforts to regulate firearms.  But there is another constitutional challenge worthy of our interest: a challenge based on the Dormant Commerce Clause.

Under longstanding precedent, the Dormant Commerce Clause doctrine forbids states (and cities) to discriminate against interstate commerce.  To illustrate this rule and its sensibility, suppose that New Jersey, in an effort to prop up its restaurant industry, passed a law forbidding its residents to eat at New York City restaurants.  One might imagine New York getting angry and retaliating, passing a similar law prohibiting its own residents from eating in New Jersey.  New Jersey might then escalate, forbidding all commercial interactions between its own residents and New York.  Before long, states around the country might be engaged in destructive tit-for-tat trade wars.  Thankfully, Dormant Commerce Clause doctrine stops this from happening: under it, Congress alone—not the states—has the power to regulate interstate commerce.  

Given this rule, the travel restrictions imposed by New York City’s premises license seem constitutionally dubious for reasons having nothing to do with the Second Amendment. Just as New Jersey can’t forbid its residents to eat at New York City restaurants, New York City can’t forbid its residents to bring their guns to New Jersey shooting ranges. Sure, the former market is obviously larger than the latter, but market size is immaterial (indeed, one of the Court’s most cited Dormant Commerce Clause cases had to do with the Arizona cantaloupe market). What matters is that states cannot discriminate against commerce in other states—which is quite arguably what the City’s premises license does vis-à-vis out-of-state shooting ranges. A similar argument could be made about the City’s former restriction on traveling with a gun to a second home: it is facially discriminatory against the out-of-state home purchase and rental markets.

Suppose the four liberal Justices expressed their willingness to join an opinion striking down New York City’s premises license restrictions on this Dormant Commerce Clause ground. For his part, Chief Justice Roberts might be especially interested in crafting a majority opinion on this rationale, since it would produce a unanimous ruling in favor of the challengers: at least five votes based on the Commerce Clause, with perhaps a concurring opinion based on the Second Amendment.  Indeed, it is possible that Justices Alito and Kavanaugh might join the Dormant Commerce Clause majority as well, viewing that as a worthwhile compromise ruling in favor of gun owners that does not inject the Court into the heated, broader nationwide argument over the Second Amendment and public carry limits.  (Justices Thomas and Gorsuch have expressed more doubt about the Dormant Commerce Clause generally).  Even with a concurring opinion on the Second Amendment ground, a unanimous decision in favor of the gun owners would convey the Chief’s famous admonition that “[w]e do not have Obama judges or Trump judges,” certainly more than a polarizing Second Amendment decision that breaks along predictable partisan lines.  And for the liberals, the crucial result would be to make no new law on the Second Amendment.  That, in turn, would allow the vital general limits on public carry in New York, D.C., and elsewhere—the kind of sensible gun restrictions that have saved countless lives over the years—to survive another day. 

[Cross-posted from Apple podcasts]

By Elizabeth Joh

Donald Trump says he should not be impeached as president, since there was "no quid pro quo" on a phone call where he asked the Ukrainian president to investigate a political rival, former Vice President Joe Biden. But does quid pro quo need to be explicitly stated to be a legal issue? And can private citizens like Rudy Giuliani represent America on foreign policy issues? Listen to the latest episode of What Trump Can Teach Us About Con Law.

[Cross-posted from the Daily Journal]

By Richard M. Frank

Blatantly illegal. Vindictive. Retaliatory. Spiteful. Or, as California Gov. Gavin Newsom aptly described it, a "weaponization of the USEPA."
All these terms accurately characterize the Trump administration's recent action to eliminate the state of California's longstanding authority under the federal Clean Air Act to adopt auto emission standards for California that are
more stringent than the national standards set by the federal government.
That action is bad news not only for California, but also for the environment as well as the consumers and automobile industry that the Trump administration's action purports to aid.
California, other affected states and numerous environmental organizations have already filed lawsuits against Trump's Environmental Protection Agency, seeking judicial intervention to nullify the EPA's "waiver withdrawal." And it's likely that they'll prevail in that legal challenge.
To understand the current dispute, a bit of historical background is required. When Congress passed the Clean Air Act in 1970, it included a provision that generally preempts states from adopting their own tailpipe emission standards for cars and trucks. However, beginning in 1966 California was already adopting its own tailpipe emission standards to address severe air pollution problems those emissions were causing in the Golden State -- especially the Los Angeles metropolitan area. Recognizing that history and expertise, Congress expressly granted California -- and only California -- continuing authority to adopt its own, more stringent tailpipe emission standards under the CAA. State officials were required under Section 209(b) of the CAA to seek a "waiver" of the national standards each time California sought to adopt its more stringent tailpipe standards and, conversely, the same CAA provision gave the EPA very limited grounds upon which to deny California's waiver request.
Over the subsequent half-century, this congressional exercise of cooperative federalism generally worked smoothly and well. California sought and received over 100 separate waivers from the EPA to adopt its more stringent tailpipe standards to curb "conventional" air pollutants such as carbon monoxide and sulphur dioxide. The results have been outstanding: despite the steady increase in the number of cars and trucks on its roads in the past 50 years, California's air pollution levels attributable to vehicular sources have
declined by approximately 95%.
This arrangement worked so successfully that Congress chose to expand it when it amended the CAA in 1977. Congress added Section 177, allowing other states the ability to "opt into" California's more exacting tailpipe standards, rather than be subject to the EPA promulgated national limits. Over the past 42 years, a large number of states have done just that: for example, some 13 other states have opted into California's greenhouse gas tailpipe and zero emission vehicle standards. When added to California's 12% of the national automotive market, these "section 177" states account for over 35% of all affected motor vehicles sold in the United States -- some 15 million vehicles annually.
But things became more complicated and fractious after the U.S. Supreme Court ruled in its landmark 2007 Massachusetts v. EPA decision that greenhouse gas emissions are "pollutants" subject to regulation under the CAA. California promptly sought a waiver from the George W. Bush administration to implement the first-in-the-nation GHG tailpipe emissions standards that California regulators had adopted in 2004. For the first time in CAA history, the EPA initially denied the waiver request in 2008, finding that California's tailpipe standards were not necessary to meet "compelling and extraordinary conditions" relating to state climate change concerns. Then-California Gov. Arnold Schwarzenegger, represented by then-Attorney General Jerry Brown, promptly sued the Bush administration, challenging the waiver denial.
That litigation was rendered moot with the 2009 inauguration of President Barack Obama. The Obama administration promptly reconsidered and ultimately granted California's waiver request to implement its own GHG tailpipe emission standards, expressly concurring in California's position that it desperately needs those standards to meet the state's compelling and extraordinary challenges from climate change. The Obama administration then went further, striking a three-way agreement with California and the automobile industry to "federalize" California's GHG tailpipe standards on a nationwide basis and join them with the federal government's own, stringent mileage (CAFÉ) standards for passenger vehicles through the 2025 model year. (Under applicable federal law, only the federal government can adopt CAFÉ standards -- a fact California officials have never contested.)
That brings us to President Trump's war on the environment, and his vengeance on California. Since taking office, Trump has pledged to repeal the Obama/California GHG tailpipe emission standards, as well as the Obama administration's CAFÉ standards. (That, of course, is only part of Trump's multifaceted efforts to repeal Obama-era environmental rules.) Almost immediately, California officials announced their own plan to retain and enforce their own state GHG tailpipe standards, per the previously granted USEPA waiver.
Trump's efforts to repeal the existing federal standards have at least temporarily stalled; his minions have struggled mightily to construct plausible legal, technical or scientific rationales for its rollback initiatives under the CAA and related federal laws, in the face of promised lawsuits by the state of California and numerous other stakeholders. Meanwhile, in July California announced an historic agreement with Ford, Honda and two other major automakers in which the companies pledged to follow California's stringent GHG tailpipe emission standards prospectively.
This latter agreement reportedly enraged the president, who quickly retaliated against both California and the automakers. Trump directed his Department of Justice to launch an antitrust investigation of those four companies, claiming their pollution control agreement with California "might" violate federal antitrust laws. (Antitrust experts roundly criticize this argument as patently frivolous.)
Meanwhile -- and also under marching orders from President Trump -- on Sept. 19, EPA Administrator Andrew Wheeler announced he was revoking the federal government's previously granted waiver allowing California to implement its GHG tailpipe emissions standards. The Trump administration bases its revocation decision on four stated rationales:
• Withdrawal of California's waiver will allow automakers to build and market cars and trucks that are cheaper, safer and therefore better for consumers;
• Automakers need this waiver revocation and related federal rollbacks in order to remain in
business;
• The nation needs a uniform set of fuel economy standards; and
• California should not be allowed to "dictate" environmental rules to the rest of the nation, because that violates the CAA's intent.

Each of these stated justifications is utterly without merit.

First, economic studies indicate that the California tailpipe standards, if left in effect as part of the Obama administration's GHG and CAFÉ standards that Trump now seeks to nullify, would save American consumers more than $1.7 trillion in fuel prices through 2025. And Trump is trotting out the same, tired canard that the auto industry invoked for decades: that mileage and pollution control standards will make vehicles less safe. However, rates of automobile deaths and serious injuries have actually declined dramatically over the years as technology improvements have made vehicles safer as well as less polluting and more efficient.
Second, the auto industry is on record as opposing the drastic GHG emission and CAFÉ rollbacks that the Trump administration is proposing. As noted above, four of the world's largest automakers have expressly embraced the California GHG emission limits that Trump & Co. are trying to nullify. And, critically, not one major automaker has expressed public support for the administration's withdrawal of California's waiver. Indeed, several of them are already complying with California's projected tailpipe emission limits.
Third, and as noted above, California has never attempted to set fuel economy standards, either for itself or the nation as a whole. All concerned agree that this role is left exclusively to the federal government. (California and other critics of Trump's proposed CAFÉ standard rollback have had the temerity to note that such federal action will result in the discharge of 6 billion tons of additional GHG emissions over the expected lifetimes of the affected vehicles.) And the U.S. Supreme Court and lower federal courts have repeatedly held that the existence of CAFÉ standards does not displace the need for -- and government's obligation to consider -- pollution control measures to abate GHG emissions.
The fourth justification of the Trump administration's waiver withdrawal is the most specious of all: Congress expressly authorized California to adopt its own, more stringent tailpipe emission standards in 1970, and explicitly allowed other states to adopt California's standards as their own a few years later. Conversely, California has never attempted to impose its emission limits on any other state or the federal government.
California Attorney General Xavier Becerra is leading a broad coalition of 24 states challenging the Trump administration's attempted waiver revocation in court. That challenge should succeed. As noted above, the Trump administration's justifications for the waiver revocation are fake news. Equally important, the CAA contains no statutory authority whatsoever for the federal government to revoke a waiver request by California that it has previously granted.
In sum, the Trump administration's waiver revocation is unwanted by anyone but President Trump (along with, perhaps, Big Oil, which alone stands to benefit financially from higher polluting, less efficient vehicles). That revocation, meanwhile, is the automobile industry's worst nightmare, creating regulatory uncertainty that will extend for years and disrupt its manufacturing and marketing efforts. And it's bad news for consumers in California and other "opt-in" states, who desire cleaner vehicles that are cheaper to own and operate.
Finally, the waiver revocation, if upheld, erodes the ability of California and other affected states to meet their ambitious but necessary GHG reductions from the transportation sector -- the single largest generator of GHG emissions -- in sthe face of federal retrenchment and resistance on the climate change front.
Fight on, California, fight on.