Monthly Archives: February 2016

Constitutional Standards of Scrutiny and Using the First Amendment to Interpret the Second

By Daniel Horwitz:

In the wake of the U.S. Supreme Court’s landmark Second Amendment rulings in District of Columbia v. Heller and McDonald v. City of Chicago, lower courts have grappled with the appropriate standard of scrutiny to apply to Second Amendment claims. Respectively, Heller and McDonald held that the Second Amendment confers an individual right to keep and bear popularly-used firearms in one’s home, and that Second Amendment is applicable against both the states and the federal government alike.  However, neither case articulated a specific standard of scrutiny for evaluating Second Amendment claims.  As a consequence, the full scope of the right to bear arms — such as whether it applies outside the home, whether it applies to handguns alone, and whether it applies only for purposes of self-protection — remains unclear.

The “standard of scrutiny” applied to a particular claim is of critical legal importance and usually determines whether the claim will succeed.  Generally speaking, and simplifying matters considerably, courts use three different standards to adjudicate constitutional claims: (1) rational basis review; (2) intermediate scrutiny; (3) and strict scrutiny.

The first standard — rational basis review — is the most forgiving.  Under rational basis review, a litigant challenging a law on constitutional grounds “bear[s] the burden of proving that it does not bear a rational relation to any conceivably legitimate governmental purpose—even a hypothetical one.”  With vanishingly few exceptions, nearly all laws satisfy this standard.

The second standard, known as “intermediate scrutiny,” raises the stakes considerably.  Under intermediate scrutiny,  the burden shifts to the government to justify the law at issue.  Under this standard — which is used, among other things, to evaluate classifications based on gender — a law “must serve important governmental objectives, and . . . the discriminatory means employed must be substantially related to the achievement of those objectives.”  Further, the government “must carry the burden of showing an ‘exceedingly persuasive justification’ for the classification” at issue.

The third standard of review, which is the most rigorous, is “strict scrutiny.”  Under strict scrutiny, “the government must prove that the challenged law is both narrowly tailored and the least-restrictive means available to further a compelling governmental interest.”  Strict scrutiny applies in areas such as racial and religious discrimination, and it also applies to many claims involving free speech.

After Heller, several competing theories were presented concerning which standard of scrutiny should apply to Second Amendment claims.  For example, one prominent scholar suggested that “courts should recognize that there are four different categories of justifications for a restriction on the right to bear arms,” and proposed that courts apply a different standard depending on the specific justification presented.  Another theorized that courts would adopt the separate “undue burden” standard that is used to evaluate abortion restrictions.  As this author noted back in 2012, though, in light of Heller‘s undefined standard of scrutiny and its expansive language approving certain “longstanding prohibitions on the possession of firearms,” “the post-Heller world has not turned out nearly as well as gun advocates had hoped.”  Instead, “by January 2, 2009, lower courts had issued rulings on all manner of gun control regulations, and . . . the scoreboard was ‘Gun Control 60, Individual Right 0.’”

Since 2012, however, a few courts have starkly deviated from this practice.  For example, in a recent February 4, 2016 opinion that could have significant nationwide consequences, the U.S. Court of Appeals for the Fourth Circuit held that certain category-based “firearms and magazine bans require strict scrutiny.”  Interestingly, the Fourth Circuit’s opinion on the matter also closely mirrors the standard of review analysis that is commonly employed in the realm of the First Amendment.

Notably, one author — First Amendment scholar David Hudson, who is an occasional guest contributor to this blog —  predicted that this might happen.  For example, in a 2012 article entitled “Turning to the First to understand the Second,” Professor Hudson anticipated that in determining the appropriate standard of scrutiny for Second Amendment claims, “many courts will refer to First Amendment free-speech law and its use of different standards of review.  In other words, judges will use the First to understand the Second.”   His most recent article on the matter — “A Continuing Trend: Using the First to Interpret the Second” — further explores this trend.  It is reposted below with permission:


Re-Posted Upon Request From The Newseum Institute:  See more at:

By David L. Hudson, Jr.: 

The 4th U.S. Circuit Court of Appeals recently used an analogy to First Amendment free-speech law in upholding a Second Amendment challenge and striking down a Maryland law banning semi-automatic rifles and larger-capacity detachable magazines.

In Kolbe v. Hogan, a divided 4th Circuit panel noted that the Maryland law imposed a near complete ban on these semi-automatic rifles and larger magazines. The appeals court analogized to the First Amendment principle that bans on entire mediums of speech are constitutionally suspect.

The U.S. Supreme Court identified this principle in City of Ladue v. Gilleo (1994), a case involving a ban on yard signs. “Our prior decisions have voiced particular concern with laws that foreclose an entire medium of expression,” the Court explained in the yard-sign case.

The 4th Circuit majority adopted this rationale in interpreting the Second Amendment right to “keep and bear arms,” writing that Maryland’s law banning semi-automatic rifles was “akin” to a law that bans an entire medium of speech.

Courts have examined and developed, over nearly a 100-year period, a complex and intricate body of First Amendment law. However, Second Amendment law is in its nascent phase. The U.S. Supreme Court did not rule that the Second Amendment right to “keep and bear arms” was an individual right until 2008 and it didn’t rule that this principle applied to state and local governments until 2010.

Sometimes, though, courts have used this First-Second connection to reject gun claims. For example, courts have reasoned that just as the First Amendment doesn’t protect all forms of speech, the Second Amendment doesn’t give one an unqualified right to possess any kind of weapon.

David L. Hudson, Jr. is the Ombudsman for the Newseum Institute First Amendment Center. He is the author of Let The Students Speak!: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011) and Teen Legal Rights.


Questions about this article?  Email Daniel Horwitz at

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at

Tennessee Supreme Court: If you commit any minor driving infraction in Tennessee, you can be pulled over. Also, you’re a criminal.

By Daniel Horwitz:

Tennessee drivers beware:  stray outside your lane – even an inch, and even for just a moment – and you’re subject to being seized and arrested by law enforcement.  Also, you’ve just committed a crime that can land you in jail for up to a month.

In a pair of companion cases handed down by the Tennessee Supreme Court on Thursday afternoon, the Court observes that “[o]ur legislature has chosen to criminalize the common driving infraction” of crossing lane lines.  Moreover, the Court explains, the fact that “drivers in Tennessee [] cross lane lines ‘all the time’” makes no difference.  No matter how minor the offense, if you’re suspected of having committed any driving infraction of any kind anywhere in the state, then neither the Fourth Amendment nor the Tennessee Constitution will protect you.

These holdings – surprising as they may seem – actually bring Tennessee law in line with the overwhelming majority of jurisdictions that have analyzed the issue over the past twenty years.  In 1996, the United States Supreme Court handed down a controversial – though unanimous – Fourth Amendment decision in Whren v. United States, 517 U.S. 806, 819 (1996).  Authored by the late Supreme Court Justice Antonin Scalia, Whren involved a police seizure for a minor traffic offense that had every appearance of being pretextual.  Although there was strong reason to believe that the real reason why the driver had been stopped was because he was suspected of carrying drugs, the Supreme Court held without equivocation that an officer’s subjective reasons for pulling someone over do not matter.  Simply stated, if police officers “ha[ve] probable cause to believe that [a driver has] violated the traffic code,” then that fact alone “render[s] the stop reasonable under the Fourth Amendment.”

The Tennessee Supreme Court’s decisions in State v. Smith and State v. Davis represent straightforward extensions of this holding, although their potential for abuse is frightening.  Both cases involved drivers who were pulled over for momentarily crossing over lane lines.  On December 6, 2012, after being followed by a trooper without incident for approximately two-and-a-half miles, Defendant Linzey Smith was pulled over for “cross[ing] the fog line ‘by less than six inches’” as she negotiated a winding, sloping portion of a roadway.  Similarly, on October 23, 2009, Defendant William Davis, Jr. was pulled over after his car’s two left wheels briefly drifted over the double yellow line splitting a two-lane road.  After being pulled over, both drivers exhibited signs of intoxication, and each was ultimately arrested for DUI.

The question presented in both cases was whether law enforcement had the requisite level of suspicion to pull the drivers over in the first place.  Both the Fourth Amendment and Article I, Section 7 of the Tennessee Constitution protect individuals from unreasonable seizures.  There is also no doubt – at least in theory – that “an individual does not lose her constitutional rights against unreasonable seizures by driving a car.”[1]  Further, longstanding caselaw establishes that “[a] police officer seizes a motorist when he turns on his blue lights in order to pull the motorist over.”[2]  As a result, every traffic stop implicates an individual’s rights under the Fourth Amendment and the Tennessee Constitution, and all traffic stops must be justified by a minimum level of suspicion.

Generally speaking, two separate types of seizures are permitted under the Constitution.  If law enforcement has probable cause to believe that an individual has committed a crime, then an officer may make a full-scale custodial arrest.  Alternatively, if law enforcement has reasonable suspicion to believe that a criminal offense has been or is about to be committed, then an officer may initiate a brief investigatory stop to investigate the matter further.[3]

Notably, “[t]he level of reasonable suspicion required to support an investigatory stop is lower than that required for probable cause.”[4]  Although non-technical and imprecise, federal judges estimate probable cause and reasonable suspicion to reflect certainty levels of roughly 45% and 31%, respectively.[5]  However, both types of seizures must be justified by specific, articulable facts.

Tennessee law provides that crossing over a lane line even momentarily is a Class C misdemeanor that is punishable by up to 30 days in jail and a $50.00 fine.[6]  Consequently, because the troopers in both Smith and Davis had at least reasonable suspicion to believe that the drivers had strayed from their lanes, the Tennessee Supreme Court held that in each instance, the traffic stops were constitutionally permissible.  The Court also reiterated, however, that “slight weaving within one’s lane ordinarily will not support a stop under any standard.”[7]

In this regard, the Court’s holdings in Smith and Davis are unremarkable.  Broadly considered, they simply reflect the U.S. Supreme Court’s now routine indication that: “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”[8]  What is concerning, however, is their profound potential for abuse.

In affirming the legality of the stops at issue, the Tennessee Supreme Court candidly acknowledged the reality that nearly all drivers constantly deviate from their lanes.  “We are confident that drivers in Tennessee [] cross lane lines ‘all the time,’” Justice Bivins’ unanimous opinion declares.  Given this state of affairs, however, it is now a fact of life that virtually any driver in Tennessee can be stopped and jailed anywhere and at any time simply on an officer’s whim for no reason other than that it is impossible to drive perfectly within one’s lane at all times.[9]  Additionally, although the Court went to great lengths to caution that its holdings were “not intended to provide law enforcement officers with ‘carte blanche’ to seize motorists every time they see a vehicle cross a [lane] line,” as a matter of practical reality, they do just that.

Any number of commentators have expressed serious reservations about this development in constitutional jurisprudence.  Perhaps most troublingly, giving police nearly unchecked authority to seize any driver, anywhere, at any time is eerily reminiscent of the “general warrants” that were abused by the British during the pre-revolutionary period—abuses which gave rise to the very existence of the Fourth Amendment itself.[10]  Moreover, Justice Bivins’ observation that “an officer has discretion as to when to stop drivers” – and his additional efforts to emphasize that “[w]e do not mean to require or imply that a stop should be made in all such instances” – should provide Tennesseans little comfort.  If past is prologue, affording all law enforcement officers virtually unfettered discretion to stop, search and arrest any Tennessee driver anywhere and at any time is all but guaranteed to lead to profound abuse of authority and disproportionate enforcement against marginalized groups.  In particular, poor minorities will continue to bear the brunt of minor traffic stops—often for purely pretextual reasons—while whiter, wealthier drivers remain unmolested.  For obvious reasons, to those unlucky few who do not receive the benefit of an officer’s benevolent discretion not to pull them over every time they cross over a lane line, the Tennessee Supreme Court’s efforts to mollify the vast scope of its holdings will be of vanishingly small consolation.

Click to read the Tennessee Supreme Court’s unanimous opinions in State v. Smith and State v. Davis.

Questions about this article?  Email Daniel Horwitz at

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at

[1] See Delaware v. Prouse, 440 U.S. 648, 662-63 (1979).

[2] See State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993).

[3] State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000) (citing Terry v. Ohio, 392 U.S. 1, 20-21 (1968)).

[4] State v. Day, 263 S.W.3d 891, 902 (Tenn. 2008).

[5] See C.M.A. McCauliff, Burdens of Proof: Degrees of Belief, Quanta of Evidence, or Constitutional Guarantees?, 35 Vand. L. Rev. 1293, 1325-28 (1982).

[6] See generally Tenn. Code Ann. § 55-8-103 (2008) (“It is unlawful and, unless otherwise declared in this chapter and chapter 10, parts 1-5 of this title with respect to particular offenses, it is a Class C misdemeanor, for any person to do any act forbidden or fail to perform any act required in this chapter and chapter 10 of this title.”); Tenn. Code Ann. § 55-8-123(1) (“A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety;”); Tenn. Code Ann. § 40-35-111(e) (“The authorized terms of imprisonment and fines for misdemeanors are: . . .  (3) Class C misdemeanor, not greater than thirty (30) days or a fine not to exceed fifty dollars ($50.00), or both, unless otherwise provided by statute.”).

[7] In this regard, the Court reaffirmed its prior holding in State v. Binette, 33 S.W.3d 215, 219-20 (Tenn. 2000).

[8] Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 1557, 149 L. Ed. 2d 549 (2001).

[9] Barbara C. Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses, 62 TEMP. L. REv. 221, 252-73 (1989).

[10] See id.  See also Lewis R. Katz, “Lonesome Road”: Driving Without the Fourth Amendment, 36 Seattle U. L. Rev. 1413, 1413 (Spring, 2013) (“[o]ur streets and highways have become a police state where officers have virtually unchecked discretion about which cars to stop for the myriad of traffic offenses contained in state statutes and municipal ordinances”); David A. Moran, The New Fourth Amendment Vehicle Doctrine: Stop and Search Any Car at Any Time, 47 Vill. L. Rev. 815, 816 (2002) (“the police may, in their discretion, stop and search any vehicle at any time”); Elizabeth Ahern Wells, Note, Warrantless Traffic Stops: A Suspension of Constitutional Guarantees in Post September 11th America, 34 U. Tol. L. Rev. 899, 899 (Summer, 2003) (stating that traffic stops have “evolved into a veritable green light for police officers, resulting in a complete disregard for personal security”).


Nashville citizens win the right to file expungement petitions offsite.

More than 128,000 Nashville residents stand to benefit from an agreement reached late Wednesday afternoon in a lawsuit that sought to help citizens who were arrested but never convicted of a crime clear their names.  The lawsuit aimed to ease filing requirements for criminal record expungement, which is a legal process that results in a person’s public criminal records being removed and destroyed.

Among other things, the expungement process allows people who have been wrongfully arrested to avoid being subjected to legalized discrimination in employment, housing, and educational opportunities.  “Consequences for criminal activity should be reserved for those who are guilty,” Davidson County District Attorney General Glenn Funk has explained.  Once an expungement petition has been processed, expunged records no longer appear on a public background check.

Currently, Tennessee law provides that anyone who has been arrested for a crime but never found guilty of it is eligible to have his or her arrest records expunged free of charge.  However, a persistent problem for many poor people who are eligible for expungement is that they are physically required to come down to the clerk’s office and file the necessary paperwork in person.  Unfortunately, for those who lack access to transportation, who can’t afford to take a day off of work, or who live out of town, this requirement has effectively become an insurmountable burden.  For example, in just a single court in Nashville in a single decade alone, more than 128,000 people with a combined 350,000 separate case records that were either dismissed or never prosecuted in the first place have not had their statutory right to expungement vindicated.

In September 2015, attorneys Daniel Horwitz and James Danly filed a lawsuit on behalf of three petitioners seeking to ease requirements for filing expungement petitions.  Among their demands was that eligible individuals be permitted to file expungement petitions by mail, rather than having to do so in person.

On Wednesday, attorneys representing state and local government agencies agreed to allow this reform to be implemented.  “This common sense reform will finally allow thousands of innocent people to access a legal right that has remained frustratingly out of reach for those without means,” said Horwitz.  Once Wednesday’s reform takes effect, eligible individuals will be permitted to file for expungement by mailing a notarized expungement petition to the Davidson County Criminal Court Clerk.

The reform also comes shortly after two bills modeled after the petitioners’ lawsuit that would expand access to the expungement process statewide were introduced in the state legislature.  The first bill, sponsored by Senator Steve Dickerson (R-Nashville) and Representative Harold Love (D-Nashville), would require courts to order that all dismissed case records be expunged “without further action by the person charged” within two years of the date of dismissal.  The second bill, sponsored by Senator Sara Kyle (D-Memphis) and Representative Jason Powell (D-Nashville), would further ease filing requirements by permitting eligible individuals to file expungement petitions online.

“Our efforts to ensure that poor Tennesseans enjoy meaningful access to the expungement process took a very important step forward today,” said Horwitz.   “We’re extremely encouraged by the overwhelming, bipartisan support for reform that this lawsuit has generated, and we’ll continue fighting to ensure that the expungement process becomes accessible to the hundreds of thousands of people who have previously been allowed to fall through its cracks.”

Additional information about the expungement process can be found at:

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at

You know that state law that prohibits cities in Tennessee from raising the minimum wage? It doesn’t.

By Daniel Horwitz:

“I firmly believe that we should have a wage that reflects what it really requires to live here [in Nashville] and that’s a [$9.51/hour] living wage,” then-candidate Megan Barry proclaimed last January during her campaign for Mayor.  A few months later, her opponent, Bill Freeman, one-upped her.  “I want to increase the minimum wage one dollar at a time, one year at a time, until we reach a $12 per hour minimum wage in Davidson County,” he announced, even airing a TV spot on the issue.  “It’s long past time, and it’s the right thing to do.”

Raising the minimum wage is perhaps the single most popular economic policy proposal that exists in the United States today.  According to recent polling on the issue, fully 92% of Democrats, 73% of Independents, and 53% of Republicans support raising the minimum wage from its current rate of $7.25 per hour to $12.50 per hour by 2020.  Broadly considered: “Americans, regardless of region, socioeconomic status, or demographic distinction, strongly favor a very significant increase in the federal minimum wage,” pollster Guy Molyneux has explained.

In Tennessee, local support for raising the minimum wage is similarly palpable.  As noted, Nashville Mayor Megan Barry has stated that she supports doing so.  So, too, have several local officials in Chattanooga.  Memphis officials have publicly supported a citywide minimum wage increase as well.  Much to their chagrin, however, all agree that one major obstacle prevents them from carrying out their best laid plans: A 2013 state law that prohibits municipalities from raising the minimum wage above the federal baseline.

The unanimity of agreement on this point is striking.  “Tennessee Code Annotated 50-2-112, restricts municipalities from setting a wage minimum above the state and federal minimums for companies with which it contracts,” explains the Times Free Press.  “State law could thwart Councilman Lowery’s effort to boost Memphis minimum wage,” concurs the Commercial Appeal.  And even as a candidate, Bill Freeman conceded the point.  “[T]he Freeman campaign says [raising the minimum wage] would require the repeal of a statute enacted in 2013 that bans cities from requiring that contractors and vendors pay more than what’s required by federal law,” the Tennessean explained.

The only problem with this analysis is that it’s wrong.  In pertinent part, the 2013 law at issue actually provides as follows:

“Notwithstanding any charter, ordinance or resolution to the contrary, no local government, as a condition of doing business within the jurisdictional boundaries of the local government or contracting with the local government, has the authority to require a private employer to pay its employees a [sic] hourly wage in excess of the minimum hourly wage required to be paid by such employer under applicable federal or state law.”[1]

To the discerning reader, this law contains a loophole (bolded above) large enough that a mack truck could drive through it sideways.  Notice, specifically, how the law does not impose a categorical ban on a local minimum wage increase.  Had the legislature wished to accomplish that result, then the law would have (or should have) looked like this:

“Notwithstanding any charter, ordinance or resolution to the contrary, no local government has the authority to require a private employer to pay its employees an hourly wage in excess of the minimum hourly wage required to be paid by such employer under applicable federal or state law.”

Instead, the restriction contained in Tenn. Code Ann. § 50-2-112(a)(1) is significantly qualified.  Under the express terms of its qualifier, nothing prevents a local government from raising the minimum wage so long as a private employer’s compliance with the local minimum wage increase is not required either: (1) “as a condition of doing business within the jurisdictional boundaries of the local government,” or (2) “as a condition of . . . contracting with the local government.”  Imposing any other condition on a private employer for failing to comply with a minimum wage increase, however, is fair game.  Thus, giving a company the option of either complying with a minimum wage increase or being met with some other type of condition (a higher licensing fee, a monetary penalty, a higher tax assessment, etc.) would not run afoul of Tenn. Code Ann. § 50-2-112(a)(1)’s limitations in any way.

In other words:  If, for example, a company were forced to pay a monetary penalty for failing to comply with a local minimum wage increase—rather than being denied the right to do business or to contract with the local government—then there would be no conflict with Tenn. Code Ann. § 50-2-112(a)(1).  In fact, that’s largely the way that the federal minimum wage law works.  Under the Fair Labor Standards Act—which imposes a $7.25 per hour minimum wage on most businesses—a business that fails to pay its employees a $7.25 per hour minimum wage is (among other things) subject to a civil monetary penalty of up to $1,100 for each violation.[2]

As a result, any city in Tennessee can mandate a local minimum wage increase tomorrow without fear.  So long as the penalty for non-compliance isn’t denial of a business’s right to operate or to contract with the city, a local minimum wage increase would not be preempted.

The propriety of increasing the minimum wage, of course, is a separate issue.  Economists disagree on whether increasing the minimum wage benefits the working poor.[3]  Additionally, legislators have several other proven anti-poverty tools—such as reducing reliance on regressive sales taxes and expanding the Earned Income Tax Credit—available at their disposal that ought to be considered as well.  Whether municipalities in Tennessee are categorically prohibited from enacting a minimum wage law, however, is a far different question.  They are not.

Questions about this article?  Email Daniel Horwitz at

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at

[1] Tenn. Code Ann. § 50-2-112(a)(1) (emphasis added).

[2] See 29 U.S.C.A. § 216 (“Any person who repeatedly or willfully violates section 206 or 207, relating to wages, shall be subject to a civil penalty not to exceed $1,100 for each such violation.”).

[3] Compare Economist Statement on the Federal Minimum Wage, Over 600 Economists Sign Letter In Support of $10.10 Minimum Wage, Economic Policy Institute, Jan. 14, 2014, available at, with Richard V. Burkhauser and Joseph J. Sabia, Why Raising the Minimum Wage Is a Poor Way to Help the Working Poor:  An Analysis of Senators Kerry and Kennedy’s Minimum Wage Proposal, Employment Policies Institute, July 2004, available at