Symposium: Disrupting the consensus on Second Amendment doctrine would be a mistake
on Nov 20, 2019 at 10:36 am
Joseph Blocher is Lanty L. Smith ’67 Professor of Law at Duke Law School, where he co-directs the Center for Firearms Law. Eric Ruben is Assistant Professor of Law at SMU Dedman School of Law and a Brennan Center Fellow. Along with Darrell A.H. Miller of Duke Law School, they filed an amicus brief in support of neither side in New York State Rifle & Pistol Association v. City of New York.
In one sense, the stakes in New York State Rifle & Pistol Association v. City of New York couldn’t be lower: The challenged regulation, a one-of-a-kind New York City restriction on transporting licensed handguns outside city limits, has already been repealed, arguably rendering the case moot. But when it comes to Second Amendment doctrine and methodology, the stakes are higher than they’ve been in a decade. If the petitioners have their way, the Supreme Court could reject the mainstream approach for deciding Second Amendment questions in favor of a more radical test focused solely on “text, history, and tradition” and without consideration of contemporary realities of guns and gun violence. That would be a mistake.
The methodological debate animating this case began 10 years ago in District of Columbia v. Heller, in which the court held that the Second Amendment protects an “individual” right to keep and bear arms for private purposes like self-defense, and that the right—like all constitutional rights—is subject to regulation. But, aside from listing some “presumptively lawful” measures, the court did not identify a doctrinal mechanism to evaluate those regulations (tiers of scrutiny, adequate alternatives, substantial burden, etc.), instead leaving the task to the lower courts.
In more than 1,000 cases since Heller, the doctrinal dust has begun to settle, and the outlines of constitutional rules and standards have become clearer. Of course, no constitutional right is governed by a single doctrinal test; even the canard that fundamental rights get strict scrutiny—repeated often by the petitioners in this case—is simply false. (Free speech claims, to take one obvious example, are governed by a wide range of tests.) But courts have nonetheless converged, with striking unanimity, on a general framework for adjudicating Second Amendment cases. That framework is frequently called the “two-step test.”
The first step is a threshold inquiry about whether the Second Amendment comes into play at all. As Heller makes clear, there’s no scrutiny necessary for bans on possession by felons (with arguable and limited exceptions for as-applied challenges), or “dangerous or unusual” weapons such as machine guns, or weapons in “sensitive places.” For those regulations that do raise Second Amendment questions, courts proceed to the second step and apply something like a sliding scale of means-end scrutiny to evaluate the relationship between the state interest served by the regulation and the methods employed to further that interest. The more seriously a regulation interferes with the “core” interest of self-defense in the home, the more scrutiny it gets.
This framework is so basic as to be archetypal—constitutional rights adjudication frequently involves a threshold inquiry into the right’s applicability, followed by some context-specific scrutiny of burden, purpose and tailoring. In the First Amendment context, for example, courts regularly ask whether an activity—campaign contributions, for example—counts as “speech” before applying whatever doctrinal test is appropriate.
In short, as some constitutional law scholars have concluded, using the two-part framework means treating the right to keep and bear arms like the fundamental right that it is. The two-part framework, moreover, accommodates both historical analysis and consideration of contemporary costs and benefits; it includes both bright-line rules (prohibitions on laws that go “too far”) and standards. And the fact that it has been endorsed by every federal court of appeals is a resounding vote of confidence.
And yet the petitioners in this case contend that applying this common methodology converts the Second Amendment into a “second-class right.” Courts are too lenient with regard to the tailoring analysis, the argument goes, or misconstrue the historical element of the framework. They say the two-part test has been systematically misapplied.
Of course, “mistakes” are inevitable in any high-volume area of constitutional litigation, and some have undeniably occurred in Second Amendment cases. One court, for example, found that the amendment protected only those “arms” in existence at the nation’s founding—not modern-day weapons like stun guns—a decision overturned by a unanimous Supreme Court. In truth, such mistakes have been relatively rare. Most Second Amendment cases are weak to begin with. This is partly because of Heller itself, which blessed as “presumptively lawful” various regulations that are often challenged, like felon-in-possession laws. It’s also due to the fact that gun politics prevent most stringent regulations from being enacted in the first place—this is not a target-rich environment for gun-rights litigators. When a court errs in upholding an unconstitutional law, however, the typical way to correct the error is through appellate decisions. In this case, by contrast, the Supreme Court is being asked to forgo the typical approach, toss out the consensus methodology and supercharge the Second Amendment with a new set of rules.
The most prominent alternative to the two-part framework is the one articulated by then-judge Brett Kavanaugh in a dissent in the U.S. Court of Appeals for the District of Columbia Circuit: That gun regulations should not be evaluated using any level of scrutiny, but rather by looking to text, history and tradition alone.
Some advocates of this new test hope and expect that it would expand the right to keep and bear arms to some imagined historical ideal, immune from regulation. But that historical image is itself ahistorical: Gun rights and regulations have coexisted for centuries. The laws have changed, because guns and gun violence have changed, but from the very beginning we’ve had versions of safe-storage requirements, bans on “dangerous and unusual” weapons, restrictions on public carrying and even outright bans on public carry – including in supposed gun havens like Dodge City and Tombstone. Guns are a part of American history, but so, too, is gun regulation. For reference, there are more than 1,500 entries in Duke’s Repository of Historical Gun Laws, a searchable, non-comprehensive database of firearms regulations that predate the federal government’s first major intervention into the field in 1934. A properly applied historical test should uphold a lot of gun regulation.
The main problem with relying solely on text, history and tradition, however, is that it doesn’t provide useful guidance for modern-day regulations that respond to modern-day gun violence. The text alone can’t tell you whether a machine gun is an “arm” or whether convicted felons are among “the People” the Second Amendment protects. The 27 words of the amendment are silent on many questions, and history and tradition don’t speak with one voice—there were and are significant regional differences in approaches to gun regulation, as well as divisions between urban and rural areas.
Perhaps in some extreme cases (a total ban on public carry, for example), text, history and tradition would provide relatively clear rules. But for most standard forms of modern gun regulation—restrictive licensing schemes for public carry, for example, or prohibitions on high-capacity magazines or on gun possession by people convicted of domestic violence—all of the work would be done by analogical reasoning. Judges would have to decide for themselves whether certain modern guns or gun laws are relevantly similar to laws from 150 or 200 years ago.
How would such a “test of judicial analogies” work in practice? Is a rocket launcher like a musket, because you can lift it, or is it like a cannon, because it’s so powerful? How is an AR-15 like a musket? Do you compare barrel lengths? Muzzle velocity? Relative deadliness? Such questions place a lot of weight on judges’ own, perhaps unexamined intuitions. In this way, the test of text, history and tradition simply cloaks judicial discretion in an air of objectivity.
In practice, the supposedly historical inquiry eventually comes back, in a roundabout and less transparent way, to the same kinds of questions that are front and center for means-end scrutiny. Good analogical reasoning requires finding relevant similarities, and what’s most relevant about guns is their function, especially their usefulness for what Heller says is the “core lawful purpose” of self-defense. If automatic weapons are prohibited, but semi-automatic handguns are permitted, does that materially interfere with people’s ability to defend themselves in their homes? If so, has the government shown that the prohibition is appropriately tailored to a sufficiently strong interest? The two-part framework makes those questions explicit, rather than laundering them through a subjective form of historical formalism.
Text, history and tradition absolutely matter in the context of the Second Amendment, just as in other areas of constitutional law. But to make them the sole measure of constitutionality wouldn’t give much useful guidance in hard cases, and would invite a lot of unarticulated, potentially hidden judicial discretion and power. Second Amendment scholar Nelson Lund puts the point well: “Pretending to find the answers in history and tradition will encourage either covert judicial policymaking, which is just what reliance on history and tradition is supposed to prevent, or ill-supported historical stories in defense of results that could honestly and responsibly be justified through normal means-end scrutiny.”
The Supreme Court is being asked in this case to reject a doctrinal framework unanimously endorsed by the federal courts of appeals and widely used in constitutional-rights jurisprudence, and to adopt instead a brand-new doctrinal test that would almost certainly invite broad judicial discretion. We hope that the court declines that invitation.