Diane Wood on the Second Amendment

In Justice v. Town of Cicero, 577 F.3d 768 (7th Cir., Aug. 14, 2009), Judge Wood upheld the handgun registration ordinance of Cicero, Illinois. The opinion accurately explained that under the then-current law of the Circuit, the Second Amendment was not incorporated in the Fourteenth. Surprisingly, Judge Wood then asserted that even if the Second Amendment were incorporated, the registration requirement is constitutional.

Judge Wood quoted Heller‘s paragraph stating that the Second Amendment right is not unlimited. As examples, the Heller Court listed prohibitions on carrying concealed weapons, bans on gun possession by convicted felons or the mentally, bans on guns in “sensitive places,” and “ laws imposing conditions and qualifications on the commercial sale of arms.” A footnote explained:  “26. We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.”

The Cicero gun registration ordinance fits in none of the Heller opinion’s specific list of  permissible gun controls. Pursuant to footnote 26, the proper course for the Wood panel would be to carefully examine whether the registration law were constitutionally permissible. We know from all the Supreme Court’s constitutional jurisprudence that some restrictions on rights are unconstitutional, even when the restriction is less than a prohibition. For example, a law requiring a person who wishes to receive communist political propaganda by mail to register with the Post Office is a violation of the First Amendment. Lamont v. Postmaster General (1965). Likewise, a law requiring married women to notify their husbands about abortions is unconstitutional, even though the notification mandate does not ban abortion. Planned Parenthood v. Casey (1992). Regarding abortion (which, unlike the right to arms, is not enumerated in the Constitution), there would obviously be a serious constitutional question if a local government compiled a list of every woman who had an abortion in the jurisdiction.

Judge Wood, however, chose not to examine the registration requirement carefully. Instead, after quoting the above paragaph from Heller, she blithely declared: “Thus, even if we are wrong about incorporation, the Cicero ordinance, which leaves law-abiding citizens free to possess guns, appears to be consistent with the ruling in Heller.” Her apparent rule seems to be that every restriction short of prohibition is acceptable; the Wood rule is contrary to the Court’s entire jurisprudence on enumerated and unenumerated rights.

Although Heller did not articulate a formal standard of review, Heller at least stands for the proposition that the Second Amendment right is protected by more than the mere rational basis test.  Accordingly, Judge Wood should have conducted some inquiry as to what interest the Cicero government had in the registration ordinance; simply compiling a list of people who exercise their constitutional rights could hardly be a legitimate government interest, let alone an important one. Second, if she found a constitutionally-sufficient government interest, then she should have examined whether the registration requirement were sufficiently connected to that interest.

Of course conducting the above inquiry is made more difficult by the absence of Supreme Court guidance about whether to use strict scrutiny, deferential strict scrutiny, intermediate scrutiny, “exceedingly persuasive justification” intermediate scrutiny, or some other test. Thus, Judge Wood would have been fully justified in deciding the case purely on incorporation, and leaving registration for another day, should the Supreme Court choose to incorporate the Second Amendment.

Instead, Judge Wood chose to preemptively rule on the constitutionality of gun registration. Her ruling was bereft of the analysis that is necessary for judicial analysis of restrictions on any enumerated right. It is safe to say that Judge Wood has ample legal skills to conduct carefully-reasoned legal analysis when she chooses to do so. Accordingly, it is plausible to infer from her unreasoned opinion a disregard for Second Amendment rights.