The Volokh Conspiracy

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'The time has come to treat the Second Amendment as a real constitutional right'


From today's Fisher v. Kealoha opinion from the U.S. Court of Appeals for the 9th Circuit (and Judge Alex Kozinski's separate opinion, though he also joined the panel opinion)—like many judicial opinions, it leaves much unresolved, but it flags an important question for the future: What sorts of procedures must the government offer for recovering Second Amendment rights that were lost as a result of a criminal conviction?

Kirk Fisher appeals the district court's adverse grant of summary judgment on the issue of whether section 134-7 of the Hawaii Revised Statutes constitutionally prohibits him from owning or possessing firearms because of his 1997 conviction for "harassment" [of his wife and daughter] in violation of section 711-1106 of the Hawaii Revised Statutes. …

This appeal involves the interaction of three statutory provisions: (1) section 134-7(a) of the Hawaii Revised Statutes, which prohibits a person from owning or possessing firearms if that person is prohibited from possessing firearms under federal law; (2) 18 U.S.C. § 922(g)(9), which prohibits the possession of firearms by persons convicted of any "misdemeanor crime of domestic violence"; and 18 U.S.C. § 921(a)(33)(B)(ii), which provides that a person "shall not be considered to have been convicted of [a misdemeanor crime of domestic violence] … if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored." …

We have previously determined that section 922(g)(9) burdens conduct protected by the Second Amendment and upheld its constitutionality, facially and as-applied, under intermediate scrutiny. United States v. Chovan, 735 F.3d 1127, (9th Cir. 2013), considered, among other things, whether section 922(g)(9) could be constitutionally applied to a defendant based on a fifteen-year-old domestic violence misdemeanor conviction. We recognized that keeping firearms out of the hands of domestic abusers is an important government interest and noted the high rate of recidivism for domestic abusers and the number and likelihood of domestic violence deaths involving the use of a firearm.

We also rejected Chovan's argument that section 922(g)(9) could not constitutionally apply to him because he had committed no further acts of domestic violence in the fifteen years following his conviction. Even assuming that Chovan had committed no such acts, we explained, Chovan had failed to adduce sufficient evidence:

(1) contradicting the government's evidence regarding the high rate of domestic violence recidivism; and (2) showing that a domestic abuser who has not re-offended after fifteen years is unlikely to do so again. Id. Thus, under intermediate scrutiny, the statute addressed a substantial governmental interest and was tailored sufficiently to satisfy intermediate scrutiny.

… Fisher argue [that] his harassment conviction occurred many years ago, and he has not committed any other crimes since that time. This argument is not meaningfully distinguishable from the one that we rejected in Chovan, and we reject it here as well. …

Fisher [also] argues that section 922(g)(9) is unconstitutional as applied to him because Hawaii law provides for only one of the four restoration mechanisms listed in section 921(a)(33)(B)(ii): gubernatorial pardon. [T]his second argument is not foreclosed by Chovan … [Footnote: [I]n Chovan, we applied "intermediate" rather than "strict" judicial scrutiny in part because section 922(g)(9)'s "burden" on Second Amendment rights was "lightened" by [the availability of mechanisms for restoration such as expungement or civil rights restoration]. Id. at 1138; see also id. at 1151 (Bea, J., concurring) (concluding that section 922(g)(9) was "narrowly tailored" to a "compelling" government interest in part because of the restoration mechanisms listed in section 921(a)(33)(B)(ii)).] [But] we decline to address it here.

Fisher concedes that he has not applied for a gubernatorial pardon for his 1997 conviction. Thus, Fisher has failed to avail himself of the one restoration mechanism that is available to him under Hawaii law, and he is in no position to argue that Hawaii's restoration mechanisms are constitutionally insufficient. See In re Coleman, 560 F.3d 1000 (9th Cir. 2009) ("Where a dispute hangs on future contingencies that may or may not occur, it may be too impermissibly speculative to present a justiciable controversy.").

Kozinski, circuit judge, ruminating:

A state's procedure for restoring Second Amendment rights bears directly on the degree to which the state encumbers those rights. Thus, despite defendants' and amici's furious protestations to the contrary, we must consider Hawaii's available restoration procedures. Our modern Second Amendment jurisprudence trains its sights on the degree to which the state burdens the right and whether that burden is tailored to the state's goal. Whether a state has a procedure for restoring Second Amendment rights plainly affects both the weight of the burden and our measure of its tailoring.

Criminal punishment, of course, always involves the deprivation of rights, but such deprivations can still raise constitutional concerns. The extent of the deprivation matters. Most recently, for example, federal courts have looked skeptically at lifelong restrictions on sex offenders' Internet access. While restrictions on each right have their own distinctive history—and restrictions on the Second Amendment are no exception—it is unsurprising that we might look askance at a state's permanent restriction on a misdemeanant's right to bear arms.

Hawaii's procedure for restoring Second Amendment rights is notably slender: The governor can pardon someone. But gubernatorial clemency is without constraint; as Blackstone put it, an executive's mercy springs from "a court of equity in his own breast."

This unbounded discretion sits in uneasy tension with how rights function. A right is a check on state power, a check that loses its force when it exists at the mercy of the state. Government whim is the last refuge of a precarious right. And while Fisher's case gives us no occasion to seek better refuge, others will.

In other contexts, we don't let constitutional rights hinge on unbounded discretion; the Supreme Court has told us, for example, that "[t]he First Amendment prohibits the vesting of such unbridled discretion in a government official." Despite what some may continue to hope, the Supreme Court seems unlikely to reconsider Heller. The time has come to treat the Second Amendment as a real constitutional right. It's here to stay.