Earlier this week, the United States Supreme Court heard argument in a case—McDonald v. Chicago—about whether the Second Amendment’s right to bear arms extends to the states and local governments. Specifically, the McDonald case will decide whether Chicago’s ban on handguns violates the Second Amendment right to bear arms. The Court will issue its decision no later than the end of June or early July.
Of course, the United States Supreme Court is the final authority on this issue and what they decide will apply throughout the United States—including the State of Washington. Nonetheless, last Thursday the Washington Supreme Court took it upon itself to decide the question in a case challenging Washington’s limited ban on a minor’s possession of a firearm. Instead of deferring its decision for three to four months, the Washington Supreme Court ruled that the U.S. Supreme Court will decide that the Second Amendment right to bear arms does apply to the States.
Why did the Washington Court choose to issue its decision now and not wait until after the U.S. Supreme Court ruled? What was the point of analyzing United States constitutional law in this case? In the words of Washington Justice Debra Stephens, the State Supreme Court’s “opinion is likely to be eclipsed before the ink it takes to print it is dry.”
Before I suggest an answer to that question, a couple of observations. First, most legal pundits (including myself) believe that based on the U.S. Supreme Court’s decision in the Heller case two years ago, which held that Washington D.C.’s handgun ban violated the Second Amendment, the Court will find that the Second Amendment applies to the states and local governments. Thus, the Washington Supreme Court’s prediction will probably prove to be correct. Second, beyond the general issue whether the Second Amendment applies to the states, the pending U.S. Supreme Court case presents the opportunity for the U.S. Supreme Court to opine more broadly on the scope of Second Amendment gun rights.
For example, the prior U.S. Supreme Court case was limited to the right of an individual to bear arms for self-defense in his home. Will the Second Amendment as applied to the states be limited to that right or will the right to bear arms be applied more broadly to state regulation of the possession of firearms outside the home? What regulatory authority will be available to states and local governments that fall short of a ban on guns in the home? What is the proper level of court scrutiny for determining whether a regulation violates the second amendment?
Since these questions, which are subject to sharp dispute, may be answered by the U.S. Supreme Court by June, the Washington Supreme Court should simply have deferred its decision until then. U.S. Supreme Court guidance on any of these questions would be helpful in deciding whether the Washington statute on a minor’s possession of firearms is constitutional or not.
Instead, we have 16 pages of admittedly elegant prose from Justice Richard Sanders rehashing much of the history of gun rights in our country that was set forth in the Heller U.S. Supreme Court decision, including references to the Federalist Papers and historical anecdotes such as that “reconstruction Republicans sought to empower black freedmen to resist oppression at the hands of resurgent white supremacists in the South.” Justice Sanders concludes with a nice rhetorical flourish that the Second Amendment right to bear arms “is necessary to an Anglo-American regime of ordered liberty and fundamental to the American scheme of justice.”
We also get 9 pages from Justice Jim Johnson seeking to outdo Justice Sanders in his defense of the Second Amendment. Justice Johnson ventures into the unanswered question of what level of scrutiny should be applied to a state gun regulation arguing that the highest level of scrutiny – so called strict scrutiny – should be applied. But his strict scrutiny analysis is rather strained as he relies on case law that applies a lesser standard of review or on concurring rather than majority opinions. His conclusion that the “tradition of underage service in our military” supports a minors rights to bear arms overstates the issue; underage servicemen are denied many rights (i.e. the right to vote) that adults have. Indeed, the Washington statute at issue exempts from criminal liability minors possessing firearms as part of military service. Justice Johnson, unlike his eight colleagues, would have found Washington’s statute criminalizing the minor’s possession of a firearm except in enumerated circumstances (i.e. firearms safety courses, target shooting, hunting with a valid license, under parental or other adult supervision, being on their residence with permission from their parent to possess the firearm) unconstitutional.
So what might the answer to the question be why the Washington Supreme Court decided to venture onto the U.S. Supreme Court’s turf just months before the U.S. Supreme Court is to rule? Only the Justices know for sure. But let me share one fact: both Justice Sanders and Justice Johnson are up for re-election this year. One can venture that the Justices up for re-election wanted the opportunity to burnish their pro-gun rights credentials in the only way that a judge running for re-election can: through their opinions. A judge talking about how they might rule on a particular case that is pending or that is likely to come before them as part of a campaign is forbidden by the Judicial Conduct Rules. Expect to see quotes from Justice Sanders’ and Justice Johnson’s opinions in campaign literature coming at you soon.
