One Important Test for Fundamental Rights

In an earlier post “Should Fundamental Rights Conflict?” I put forth many of the requirements used by the Court to elevate a Fundamental Right using Substantive Due Process (rights not found in the Constitution). There should be another test for any right to qualify as a Fundamental Right. If the right cannot be defended using “strict scrutiny” (this is the highest burden placed on the government to defend laws which may circumvent the Fundamental Right) then the right is not really a Fundamental Right. No Fundamental Right is exempt from government regulation, but it should not be easy to regulate any Fundamental Right. Strict scrutiny means the statute must be “narrowly tailored to serve a significant government interest” and “there must be ample alternative means to achieve the protected ends.”

Freedom of speech is a Fundamental Right that is found in the First Amendment of the Bill of Rights. It was never elevated as a right by the Court, because freedom of speech already existed in the Constitution. Freedom of speech is an interesting right to examine because it has different levels of scrutiny. Obscenity, defamation, fraud, and incitement are “outside the reach of the First Amendment.” Political speech is subject to “strict scrutiny”; commercial speech and adult store material are subject to “intermediate scrutiny” (although, this should not be the case for commercial speech); and “time, place, and manner regulations on speech need only be reasonable and justified without reference to the content of the regulated speech” (Ward v. Rock Against Racism, 1989). The bottom line, most speech is protected via “strict scrutiny” but there can be varying levels.

Abortion is a Fundamental Right (Roe v. Wade, 1973), but government abortion legislation is held to a very low burden of proof: “undue burden”. Abortion laws are legal if the Court determines “they do not pose any ‘undue burden’ on the right to abort a non-viable fetus” (Gonzales v. Carhart, 2007 – Partial Birth Abortion Case). The Court has also upheld many abortion laws even though they had the “effect of increasing the cost or decreasing the availability” of abortions. No other Fundamental Right faces such a low standard of burden of proof for government regulations and it is simple to understand why: 1. every abortion is tragic whether to it is to save the life of a mother or because the baby is unwanted, abortion is tragic; and 2. Abortion rights are not unlimited, for instance, it faces many restrictions with regards to the “viability” of the baby.

Many argue that when the Court elevated the “right to keep and bear arms for self-defense” (Heller v. DC, 2008 and McDonald v. Chicago, 2010) they erred because there are two sides of gun rights (lawful and unlawful). However, the same can be said about free speech explained earlier. In its majority decision, the Court, in Heller and McDonald failed to set forth guidelines for evaluating regulatory gun laws. However, the Court maintained that the right is not unlimited, such as regulations for owning a gun could include restrictions based on mental acuity or criminal record. Hence, the initial task of evaluating and interpreting regulatory gun laws fell on the Circuit courts. There were two interesting cases in 2011 decided by the Ninth Circuit (Nordyke v. King) and the Seventh Circuit (Ezell v. Chicago). In Nordyke, the Court held that an Alameda County law prohibiting gun shows on government property was Constitutional. In Ezell, the Court held that a Chicago law prohibiting target ranges within city limits was unconstitutional.

The difference between the two cases is that in Nordyke the Liberal Court used more lenient abortion standards (undue burden) to uphold the law. In Ezell, the Court used First Amendment standards of stricter scrutiny to strike down the law. For instance, in United States v. Skoien (2010), the Seventh Circuit applied intermediate scrutiny to this case to uphold a law that “prohibits the possession of firearms by persons convicted of domestic-violence misdemeanor.” The Court reasoned that Skoien was not a “law abiding citizen” nor was “self-defense” the main component of the case. Conversely, in Ezell, he was a “law abiding” citizen and his case was paramount in self-defense. A similar standard should have been used in Nordyke (a law abiding citizen) to strike down the discriminatory Alameda law which solely targeted gun shows without a compelling data to show that it made Alameda County any safer to regulate gun shows. After all, people cannot defend themselves if they cannot purchase a gun, and people cannot defend themselves properly without getting the gun that best suits their needs.

Abortion and guns are not the same. Less than 0.1% of guns are used in a crime where something tragic occurs. The same can be said about the First Amendment, less than 0.1% acts of Free Speech violates the law. However, more than 5% of abortions break the law, and every single abortion, legal or not, is not only tragic, but is also a violation of our moral and ethical code. Over half of the country would consider an abortion murder. In 2016, 3962 people died from guns (about 15% were self-defense) compare that with 1 million “legal” abortions.