Second Amendment Rights for Me But Not for Thee

The Fourteenth Amendment guarantees that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Among lawyers, the buzzword we looking for in an equal protection case is “strict scrutiny,” because chances are that once the court has said that standard applies, the government will lose. Nevertheless, there are plenty of cases—including last term’s Obergefell decision on gay marriage—in which a government action has transgressed even less rigorous levels of scrutiny.

After all, the Constitution doesn’t guarantee the “equal protection of the laws” only to people who fit within certain categories. Instead, it guarantees that governments – federal or state – will not make arbitrary distinctions among the people subject to their laws. For instance, the Supreme Court has said that the government cannot refuse food stamps to people living in a household where not everyone is related (U.S. Dep’t of Agr. v. Moreno). Nor may the government require a special-use permit for the operation of a group home for mentally disabled people (City of Cleburne, TX v. Cleburne Living Center, Inc.). Nor may a state restrict access to its public schools to legal residents, thereby preventing illegal-immigrant children from receiving an education (Plyler v. Doe).

Now there’s a new lawsuit in federal court in California, Garcia v. Harris, that challenges the way that state has structured its Gun-Free School Zones Act. Until last year, state law contained an exemption for people who had obtained a California license to carry a concealed weapon (“CCW”). Due to pressure from the anti-gun lobby, however, the state legislature removed that exemption, nevertheless leaving in place the exemption for “an honorably retired peace officer authorized to carry a concealed or loaded firearm.”

However much the anti-gun lobby wants to tout this as a commonsense exemption, or a bone to throw to the law-enforcement community, it leads to ridiculous outcomes. As an initial matter, retired police who ever carried a firearm during their service are eligible to carry a firearm afterward as a matter of course. They are exempt from the Act even though they haven’t gone through anything near the rigors of the CCW application process, which requires showing “good moral character,” completing a firearms training course, and establishing “good cause.” (We’ll set aside for now the issue of why someone needs to show “good cause” to be able to exercise a constitutional right; the Supreme Court has repeatedly declined to take up cases that would explore the scope of the right to bear arms outside the home.)

But the exemption is even broader than that: It allows people whose work had nothing to do with firearms to carry them simply because they worked for the government. For example, the law exempts retired employees of the California Department of Fish and Game. It also exempts retired marshals who “ke[pt] order and preserve[d] peace at the California Exposition and State Fair.”

And perhaps most absurdly, the law exempts retirees from “any federal law enforcement agency.” So while the law does not give an exemption to a Marine Corps vet who served in Afghanistan and is an expert marksman, it would exempt an IRS retiree who spent his career at a desk computing tax penalties far away from the field of combat.

These inane rules giving preferential treatment to former government employees cannot withstand even the so-called “rational basis test” under the Equal Protection Clause. As the Court said in Cleburne, equal protection “is essentially a direction that all persons similarly situated should be treated alike.”

There is simply no reason that an emergency room doctor who received threats against his family cannot carry a firearm when he drops his children off at school but a retired tax collector can. Working for the government already carries enough benefits: Special treatment under gun-control laws should not, and under the Equal Protection Clause cannot, be one of them.