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Symposium: Supreme Court should address lower court nullification of the Second Amendment

David B. Kopel is Research Director at the Independence Institute and an Adjunct Professor at University of Denver, Sturm College of Law. Randy Barnett is Carmack Waterhouse Professor of Legal Theory at Georgetown Law. Kopel wrote and Barnett  joined an amicus brief filed by Second Amendment professors on behalf of the petitioners in New York State Rifle & Pistol Association Inc. v. City of New York.

In the 2008 decision District of Columbia v. Heller, the Supreme Court affirmed that the Second Amendment is an individual right of all Americans, like everything else in the Bill of Rights. Yet many lower courts have refused to accept the Supreme Court’s holding. Among the worst offenders are the U.S. Courts of Appeals for the 2nd and 9th Circuits. In New York State Rifle & Pistol Association v. New York City, the Supreme Court should address the problem of lower court nullification of the Second Amendment.

The case involves New York City’s ban preventing licensed handgun owners who live in the city from taking their handgun outside the city. Under the regulation, licensed owners could not take their handgun to a second home, or anywhere else. They could not use their New York City handgun at a target range in New Jersey or a safety training class in Westchester County.

The only places for a New York City resident to practice gun safety were seven target ranges within the city, whose population is 8.6 million. These small urban ranges cannot match what is available elsewhere. For example, while small ranges allow shooting straight ahead at a short distance, facilities with more space can teach students how to shoot while moving, and how to defend against attackers who are not directly in front of them. By preventing better training, the NYC travel ban gravely endangered the lives of law-abiding handgun owners.

When the NYC travel ban was challenged, the 2nd Circuit stated that the ban probably did not even implicate the Second Amendment. According to the appeals court, the travel ban was such a trivial inconvenience that judicial review of the law was probably unnecessary.

The 2nd Circuit is not the only court to pretend that obvious restrictions on the Second Amendment have nothing to do with the Second Amendment. The Supreme Court in Heller specifically instructed lower courts not to use the “rational basis” test in Second Amendment cases. Under the rational basis test, the most lenient standard of review in constitutional challenges to government actions, laws are almost automatically upheld. In the 2017 case Texeira v. Alameda, the 9th Circuit used the rational basis test to validate a California county’s ban on all new gun stores.

Another problem in some lower courts is willful cluelessness about the actual exercise of Second Amendment rights. In this case, the 2nd Circuit brushed off the travel ban by stating that city residents who venture outside the city can just rent a handgun.

Actually, many ranges do not rent guns. More importantly, forced rentals contradict gun safety and good training. As firearms-safety instructors emphasize, a person who might have to use a gun for self-defense should train with that particular gun. In the crisis of a violent attack, the defender often relies on muscle memory. This requires using the particular firearm with which the defender has become familiar via practice.

Even within a given make and model, handguns vary in operation. Just as 10 cars of the same model and year will all drive and handle a little differently, handguns vary too. One reason is small variations in the sizes of parts. Another reason is that final assembly is done by hand, with the assembly person manually adjusting internal settings, such as trigger pressure. As guns are used, they differ even more, due to variances in wear, replacement or upgrading of parts, and so on. Thus, one gun may reliably feed a particular brand of ammunition, and another gun may not. The only way to know how one’s gun will perform is to practice with that gun.

For example, “trigger break” is the exact point in trigger movement when the trigger initiates the firing of the ammunition. By muscle memory, a proficient user knows this exact point for her gun.

The “reset point” is where the trigger returns after the gun has fired. When releasing the trigger, the proficient user should move her finger exactly far enough forward to let the trigger reset—and no further. Then, the user is ready to pull the trigger again with just the right amount of finger movement.

Learning the trigger break and reset point requires muscle memory, built through practice with a particular gun. Practice with one’s own gun improves control, safety and accuracy.

According to the 2nd Circuit, preventing practice with one’s own firearm is such a minor inconvenience that the Second Amendment is not even at issue. For the sake of argument, the 2nd Circuit did imagine that the travel ban should be reviewed under “heightened scrutiny.” Heightened scrutiny requires the court to carefully examine the evidence about the burdens and benefits of the challenged law. The burden of proof is on the government.

The weakest form of heightened scrutiny is called “intermediate scrutiny”—an easier standard than “strict scrutiny.” Strict scrutiny was originally created for judicial review of government discrimination based on race; intermediate scrutiny was first used for review of government discrimination based on sex.

The 2nd Circuit says that strict scrutiny never applies to the Second Amendment. Some federal courts elsewhere have said the same. So the 2nd Circuit reviewed the travel ban under intermediate scrutiny.

The Supreme Court’s cases have established detailed rules for applying intermediate scrutiny. Among them: 1. The government must produce substantial evidence. 2. The government must overcome rebuttal evidence. 3. The government must prove that its objective is achieved more effectively through the regulation than through other means. 4. The government must consider substantially less burdensome alternatives. In upholding the travel ban, the 2nd Circuit ignored all these requirements.

According to the Supreme Court in City of Los Angeles v. Alameda Books, the government cannot “get away with shoddy data or reasoning.” And in Edenfield v. Fane, the court emphasized that the government cannot pass intermediate scrutiny with merely an “affidavit … which contains nothing more than a series of conclusory statements.”

What was the evidence in favor of the NYC travel ban? An affidavit with nothing more than a series of conclusory statements. The entire evidence in support of the travel ban was an affidavit from a former gun-licensing official. He speculated that licensed New York City handgun owners transporting unloaded handguns outside the city might perpetrate “road rage.”

The affidavit did not supply a single example of a licensed New York City resident misusing a transported handgun before the 2001 travel ban. To the 2nd Circuit, the retired official’s speculations were all that was needed to uphold the ban.

The problem of lower courts’ relying on flimsy evidence in Second Amendment cases is widespread. When the 3rd Circuit upheld New Jersey’s confiscation of all magazines with over 10 rounds in Association of New Jersey Rifle & Pistol Clubs v. Attorney General of New Jersey, dissenting Judge Stephanos Bibas observed: “[T]he majority’s version of intermediate scrutiny is too lax. It cannot fairly be called intermediate scrutiny at all. Intermediate scrutiny requires more concrete and specific proof before the government may restrict any constitutional right, period.”

Not all lower courts have refused to enforce the Second Amendment. When Chicago outlawed all target ranges open to the public, the U.S. Court of Appeals for the 7th Circuit held the ban unconstitutional. In response, Chicago adopted zoning rules banning indoor target ranges from 98 percent of the city. Further, parents were prohibited from teaching firearms safety to their teenage children at target ranges. The 7th Circuit held these laws unconstitutional too. Similarly, a federal district court in Chicago overturned a ban on all gun stores within city limits.

Decisions by the U.S. Courts of Appeals for the District of Columbia Circuit and 7th Circuit resulted in adoption of fair laws for bearing arms in D.C. and Illinois. In both places, an applicant for a concealed carry permit must pass safety training and a fingerprint-based background check. Applicants may not be denied a permit just because a government official opposes exercise of the right to bear arms.

The lower court nullification has been noticed. Justices Clarence Thomas and Neil Gorsuch and the late Antonin Scalia dissented from several cert denials in which lower courts upheld especially egregious violations of the Second Amendment. For example, a San Francisco law prohibits residents from having a firearm available for immediate self-defense in a bedside table while sleeping—or even while changing clothes. A Chicago suburb outlaws many common firearms, including the most widely owned rifle in American history.

Scalia and Thomas denounced the opinion upholding the Chicago suburb’s gun ban as an example of widespread “noncompliance with our Second Amendment precedents.” Regarding the Supreme Court’s refusal to consider the San Francisco ordinance, Thomas and Scalia observed: “Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense, lower courts, including the ones here, have failed to protect it.” In short, as Thomas stated in his dissent from the denial of certioriari in Silvester v. Becerra, “the lower courts are resisting this Court’s decisions in Heller and McDonald and are failing to protect the Second Amendment.”

The problem is well known. It is time for the Supreme Court of the United States to defend its preeminent role in constitutional interpretation and to address lower-court nullification of the Second Amendment.

Recommended Citation: David Kopel and Randy Barnett, Symposium: Supreme Court should address lower court nullification of the Second Amendment, SCOTUSblog (Nov. 20, 2019, 1:00 PM),