THE CONSTITUTION’S SLIDING SCALE

We continue to take the opportunity offered by the U.S Supreme Court opening its 2014-15 term to review some interesting areas of constitutional law.  And so it is that, at times, developing law in areas seemingly irrelevant to most businesses will nevertheless illustrate principles useful in other parts.

Such is the case for the Second Amendment.  In what appears to be a deliberate strategy, the Supreme Court has established two basic rules: first, the right to bear arms is an individual right that covers, at a minimum, the right to keep a gun in the home for self-defense; second, it is a fundamental right which the states (not just the federal government) must respect as well.

Beyond that, the Supremes have stayed carefully away from the topic while the Courts of Appeals flesh out the scope of this individual right to bear arms.  The emerging picture is one where the closer a law or regulation comes to infringing on the core of the right to bear arms, the more closely it will be scrutinized.

That kind of sliding-scale approach is not uncommon.  For instance, the government may regulate possession of property – think of zoning, which dictates what one may do with one’s real estate based on where it is located.  The more stringent the restrictions, the closer they come to making property worthless, the closer judicial scrutiny will be.  The courts have held that zoning that ends up making any use impossible would no longer be seen as an exercise in regulation but as a taking, eminent domain under the cloak of regulatory authority, requiring just compensation.

The law is replete with finicky details, maddening exceptions, sometimes incomprehensible distinctions.  But it also follows broad governing principles.  For that reason, even cases seemingly remote from the daily concerns of Florida’s businesses may be pregnant with concepts which those businesses and their attorneys will do well to remember.  The right to bear arms and the right to warehouse are not as foreign to one another as one might think at first blush.