Some thoughts on the "undue burden" concept

[Eric Segall]

How do we even begin to define "arms?"

I don't ask this to argue against the right (though in all  candor I
don't believe in it) but rather to suggest that the balancing test
(whatever it is going to be), needs to reflect the down sides of
undervaluing the government's interest. Does the government (state or
federal) need to offer actual proof to categorically forbid the
possession of a weapon of mass destruction that takes the form of an
"arm?"  I take it no one believes only those arms that existed in the
eighteenth century or those necessary to self defense or covered. But
that doesn't tell us much.

The other reason I  make this point is to suggest that, possibly,
"arms" in the wrong hands and for the wrong purposes are more dangerous
than speech or tv violence. Moreover, speech that takes the form of a
gun (that incites immediate violence) is not protected.

Eric          

>>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 3/3/2010 5:16 PM >>>
It seems to me that the Casey version of the test doesn't contemplate
any narrow tailoring inquiry or necessity inquiry.  Rather,

A finding of an undue burden is a shorthand for the conclusion that a
state regulation has the purpose or effect of placing a substantial
obstacle in the path of a woman seeking an abortion of a nonviable
fetus.

The focus is just on the magnitude (actual and intended) of the burden
on the right.  My sense is that making "undue burden" into something
like "intermediate scrutiny," with the possibility that even substantial
obstacles - down to total bans - may be constitutional because they are
"due" is likely to cause confusion, and to make the test very different
from the Casey test.  If one wants to argue for a different standard,
that's fine; consider, for instance, Zablocki v. Redhail's articulation
of the unenumerated rights test as to the right to marry:

When a statutory classification significantly interferes with the
exercise of a fundamental right, it cannot be upheld unless it is
supported by sufficiently important state interests and is closely
tailored to effectuate only those interests.

That sounds like a test that contains both a burden threshold
("significantly interferes") and a possibility that even substantial
burdens can be justified under some heightened scrutiny ("closely
tailored to effectuate" "sufficiently important state interests").  I
think that test won't work well for the right to bear arms, for reasons
I discussed in Part I.C of http://www.law.ucla.edu/volokh/2am.pdf .  But
at least it would clearly articulate the steps of the inquiry, rather
than using the "undue burden" formulation, which on its face is more
opaque and which, as defined in Casey, is quite different from the
Zablocki test.

            Eugene

From: Humbach, Prof. John A. [mailto:jhumbach at law.pace.edu] 
Sent: Wednesday, March 03, 2010 1:52 PM
To: Volokh, Eugene; 'conlawprof at lists.ucla.edu'
Subject: Some thoughts on the "undue burden" concept

With respect to burdens, it appears to me that, in the First Amendment
context, the criterion of "undueness" is built into the basic tests of
O'Brien (incidental effects), time/place/manner and commercial speech,
which together comprise the occasions for so-called "intermediate
scrutiny." Specifically, the "undueness" criterion is expressed in the
requirements, respectively, that a challenged law's burden on speech
be:

* "no greater than essential" to further the governmental interest
* "narrowly tailored" to serve a significant governmental interest
* "no more extensive than necessary" to serve the governmental
interest

What these 3 requirements all say, in effect, is that a burden on
speech is "undue" if it is not commensurate with the important
governmental interest that it serves. In other words, the "undueness" of
a burden on speech is not a function of whether the burden in a big deal
to those who are subject to it but, rather, a function of its remedial
proportionality. I'm not sure, however, that this is the general
understanding (or meaning) of "undue burden" as used in Casey.

At any rate, in the First Amendment context if the burden of a law (not
aimed at content) is "undue," i.e., if the challenged law does not meet
the above requirements, then the law is invalid. I'm guessing that the
same might apply in the Second Amendment context, as well.

This may not be "a sound way of interpreting a constitutional
provision," but it has worked for many years to run the non-obscene
"adult" theaters and nude dancing out of town, despite their being
"protected" speech. It might work on guns, as well.

John A. Humbach, Professor of Law
Pace University School of Law
78 North Broadway
White Plains, New York 10603
Tel. 914-422-4239  -- jhumbach at law.pace.edu 
personal homepage: humbach.net
________________________________
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh,
Eugene
Sent: Wednesday, March 03, 2010 12:53 PM
To: 'conlawprof at lists.ucla.edu'
Subject: RE: Undue Burden standard for guns?


            I'm actually a supporter of a "substantial burden" standard
for gun regulations, see http://www.law.ucla.edu/volokh/2am.pdf; and
state constitutional right to bear arms decisions generally tend to take
more or less this view (though of course the pattern is far from solid).
 Part of what influences me on this is precisely that I think the
"substantial burden" test is an important component of constitutional
adjudication more generally.  As Alan Brownstein discussed in an
excellent article on the subject, the "substantial burden" inquiry -- at
least as one element of a test -- appears not just in Casey, but also in
Sherbert/Yoder-era Free Exercise Clause cases, in the "ample alternative
channels" prong of the test for content-neutral time/place/manner
restrictions, in the right to marry cases, in the First Amendment
election regulations cases, and elsewhere.  And this makes sense, both
given 19th-century caselaw, which generally distinguished modest
regulations from prohibitions or very severe regulations, and the text
of the various provisions which prohibit "abridging" or "infring[ing]"
rights; it's not clear that all regulations amount to abridgements or
infringements.



            As to Scalia's condemnation of the "undue burden" test in
Casey, it seems to me to mostly reflect the view that the underlying
right made no sense, and that a substantial burden test makes no sense
in light of that right.  I do think that he at times seems to condemn
the threshold more broadly:



I agree, indeed I have forcefully urged, that a law of general
applicability which places only an incidental burden on a fundamental
right does not infringe that right, but that principle does not
establish the quite different (and quite dangerous) proposition that a
law which directly regulates a fundamental right will not be found to
violate the Constitution unless it imposes an "undue burden." It is
that, of course, which is at issue here: Pennsylvania has consciously
and directly regulated conduct that our cases have held is
constitutionally protected. The appropriate analogy, therefore, is that
of a state law requiring purchasers of religious books to endure a
24-hour waiting period, or to pay a nominal additional tax of 1¢. The
joint opinion cannot possibly be correct in suggesting that we would
uphold such legislation on the ground that it does not impose a
"substantial obstacle" to the exercise of First Amendment rights. The
"undue burden" standard is not at all the generally applicable principle
the joint opinion pretends it to be; rather, it is a unique concept
created specially for this case, to preserve some judicial foothold in
this ill-gotten territory. In claiming otherwise, the three Justices
show their willingness to place all constitutional rights at risk in an
effort to preserve what they deem the "central holding in Roe."



Yet I think that here he is just mistaken:  Content-neutral speech
restrictions, which nonetheless directly regulate the fundamental right
to free speech, are indeed subject to weak scrutiny (a weak form of
intermediate scrutiny) unless they fail to leave open ample alternative
channels for speech, which is another way of saying that they are
subject to weak scrutiny if they don't pose a substantial obstacle to
communication.  The same is, I suspect, true for other regulations of
fundamental rights, for instance certain procedural requirements for the
exercise of procedural rights.  A requirement that someone pay a modest
fee to get a civil jury trial would be quite constitutional, I think,
and is (to my knowledge) routinely upheld.  Likewise with a requirement
that one pay a fee to file a lawsuit, which is a burden (but not an
unconstitutionally substantial burden) on one's Petition Clause rights. 
And of course modest fees for content-neutral permits are also
constitutional, as are content-neutral requirements that one generally
ask for a parade permit some number of days before the parade.  None of
this is terribly controversial.



            To be sure, even modest burdens are unconstitutional when
they implicate what the Court sees as equality rights, such as the right
to be free from restrictions that single out religious practice, or the
right to be free from content-based speech restrictions, or for that
matter the right to be free from race classifications.  That is what's
doing the work in Justice Scalia's "religious books" requirements.  But
this doesn't apply to many substantive rights provisions.



            So I hope that Justice Scalia won't feel bound by the
overstatements - overstatements that dealt with other constitutional
provisions, about which I suspect he didn't think as closely as he had
about the abortion right that was directly at issue in Casey - in his
Casey dissent, especially since the statements are indeed clearly and
uncontroversially overstatements.



            Eugene



Eric Segall writes:

>

> > How can Scalia adopt an "undue burden" standard for the Second

> > Amendment after his rant in Casey about the standard? Because one
is

> > "textual" and one is "not?" Not convincing . . . .

> >

> > Eric