This is part one in a two-part series, co-authored with Professor Alan Brownstein, for Justia's Verdict on the ways in which lower courts and the Supreme Court will need to flesh out Second Amendment doctrine.
One of the big constitutional issues that will be discussed and litigated over the next decade, and one that may figure prominently in the election this fall, is precisely what leeway Congress, states, and localities have to regulate firearms ownership and use consistent with the Supreme Court’s recent declaration that the Second Amendment includes an individual constitutional right, at least under some circumstances, to keep and bear arms.
In a series of columns beginning with this one, we explore and analyze some of the major Second Amendment issues confronting the lower courts—and soon the Supreme Court. In this installment, Part One of the series, we provide the background necessary to appreciate some of the cutting-edge questions that we will then take up in more detail in Part Two, here on Justia’s Verdict, in a few weeks.
The Heller Bombshell
In 2008, in District of Columbia v. Heller, the United States Supreme Court determined, for the first time in over two centuries, that the Second Amendment protects an individual and fundamental right to keep and bear arms. In doing so, the Court struck down local gun control regulations in DC that prohibited the possession of a handgun in one’s home, and required any firearm in one’s home to be “unloaded and disassembled or bound by a trigger lock.” Two years later, in McDonald v. City of Chicago, the Court concluded (as everyone expected it would, after the landmark Heller ruling) that the Second Amendment limited not only the federal government (as in DC), but also the states and localities, by way of the Fourteenth Amendment’s incorporation doctrine.
Identifying the existence of a right is one thing. Developing doctrine to guide the resolution of cases involving alleged abridgements of the right is quite another. In its two recent cases, the Court—by its own admission—has done little to assist the lower federal courts and state courts in deciding Second Amendment disputes.
Not surprisingly, there has been a flood of such disputes. Indeed, given the extraordinary ambiguity of the Heller opinion, it is difficult to understand why anyone convicted of a gun offense would not raise a Second Amendment defense to the charges against him. Courts have confronted challenges to laws that: prohibit the possession of firearms with obliterated serial numbers; ban persons convicted of misdemeanor domestic violence from possessing firearms; deny firearms to felons; prohibit the carrying of loaded handguns within a national park; prohibit the carrying of a loaded firearm outside one’s home or place of business; require the registration of firearms and require firearms training as a condition of registration; and prohibit gun shows in which firearms are sold on county property. And these are just a few of the claims raised to date.
To put things mildly, constructing a legal framework for evaluating these and other claims has been a challenge to lower courts. Certainly, the reasoning and analysis of judicial opinions in this area have been varied and conflicting. Indeed, we think it is fair to say that at the current time, no one really knows how Second Amendment cases should, or will, be adjudicated. Doctrine in this area is a work in progress. Numerous issues remain unclear and unresolved.
The Guidance Heller Does, and Does Not, Provide
The Court in Heller was clear about a few things. It left no doubt that the Second Amendment right to bear arms was grounded in the self-defense of one’s person and one’s home. And it made clear that the language in the first clause of the Second Amendment about “a well regulated Militia being necessary being necessary to the security of a free State” has no bearing on the meaning of this constitutional provision. Thus, according to the Court, the utility of a weapon for militia or military purposes has no relevance to whether possession of the weapon is protected by the Second Amendment. Handguns are covered because of their utility for self-defense purposes. Machine guns are not covered, notwithstanding their greater utility for state security purposes.
The Court was also adamant about the standard of review that would not apply to gun control regulations. Rational basis review—in which a law needs to be only minimally rational to be upheld—was inappropriate, because it is too deferential to protect a “fundamental” right.
Further, in responding to Justice Breyer’s dissenting opinion, the Court emphatically rejected the argument that restrictions on the right to keep and bear arms should be evaluated under a “freestanding ‘interest-balancing’ approach.” The “core protection” of other fundamental rights—such as the right to free speech—was not subject to such a case-by-case analysis. Indeed, the recognition of an interest as a fundamental right reflected the exact opposite understanding. In adopting the Second Amendment, the People had already engaged in a basic balancing of interests and concluded that the right to firearms deserved special protection from government interference. New attempts to rebalance the right’s value against competing state interests were foreclosed by this earlier constitutional determination.
While the Court was somewhat clear in describing the wrong way to evaluate Second Amendment claims, it was much less helpful in discussing how Second Amendment cases should be correctly adjudicated. The Court explained that it did not need to discuss the various standards of review that might be applicable because the D.C. regulations before it were so obviously unconstitutional and inconsistent with Second Amendment guarantees that they would be struck down under “any of the standards of scrutiny” previously applied in fundamental rights cases.
Perhaps the Court would have been better off stopping there and giving lower courts the first crack at the daunting task of developing Second Amendment doctrine from scratch. But it did not. Instead, it went on to make a number of observations about how the doctrine should unfold, and in doing so, it created considerable confusion—making an already difficult job for lower courts almost impossible.
The Court started sensibly enough by acknowledging that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” But then it proceeded to identify some, but not all, of those limits by way of a flimsy—indeed conclusory—summary of historically accepted restrictions on firearms: “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places, such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of firearms.”
Further, the Court indicated that this list of limits was neither complete nor absolute: “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.” Indeed, in an isolated comment, later in its opinion, the Court casually added another limitation to its list, saying that its holding should not be understood to suggest that “laws regulating the storage of firearms to prevent accidents” were unconstitutional.
While some of the limits the Court imposed related to the identity of the person being regulated, or the place being regulated, or the particular activity being engaged in, other limits that the Court recognized on the right to keep and bear arms pertained to the kind of weapons encompassed by the Second Amendment. This analysis too was predicated on an abbreviated historical discussion. The Court confirmed that the weapons covered by the right were those “in common use at the time” of the Second Amendment. Thus, according to the Court, the Second Amendment “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”
In addition to identifying limitations on the right to bear arms, the Court also recognized particular circumstances and gun-user-motives where the right was at its zenith. The need to defend one’s person, family and property in one’s home was “most acute,” the Justices asserted, without providing further analysis. The importance of the right to defend one’s home was repeated several times, perhaps most notably when the Court insisted that “whatever else it leaves to future evaluation, [the Second Amendment] surely elevates above all other interests the right of law-abiding responsible citizens to use arms in defense of hearth and home.”
One Reason Heller Provides a Shaky Foundation for Doctrine: The Lack of a Discussion of the Nature of the Permissible Limitations
It would be difficult to overstate the confusion sown by Heller. To reiterate, the Court provides no guidance whatsoever as to the standard of review to be applied in Second Amendment cases. And, if that were not bad enough, the Court went on to provide a list of historically accepted restrictions on the right to keep and bear arms that the Justices explicitly admitted was incomplete.
The Court’s reliance on history and tradition in this regard would not be so problematic if it had provided adequate background on the relevant history to enable lower courts to extrapolate from the list the Court provided. But here again, in response to dissenting justices’ demands for more information, the Court refused to provide additional background for its historical conclusions. Without a more detailed historical account, however, how can a lower court know, until the Supreme Court makes more transparent its approach to history in this context, when a specific gun control measure is sufficiently longstanding to limit the scope of the right?
Heller raises other conceptual and doctrinal dilemmas too. Most importantly, in discussing the limits to the Second Amendment, it fails to explain the essential nature of the limits it is describing.
Typically, rights might be limited in two ways. First, rights are limited in the range of activity—the scope—they encompass. Not everything that communicates a message, for example, such as an act of terrorism or the display of obscene movies, constitutes speech that is protected under the free speech clause of the First Amendment. Second, rights are also limited in that that they may be outweighed by countervailing governmental interests. The use of loudspeaker for a political message is clearly protected speech, but it may be prohibited in a residential neighborhood late in the evening to further the state’s interest in providing people quiet and repose in their homes at night.
The Heller Court never explicitly identifies the kind of limitations it has in mind. One might reasonably read its emphasis on history, and its condemnation of interest balancing, as suggesting that the limitations it describes (and other unidentified traditional limitations) go to the scope of the Second Amendment right. That might support the development of doctrine that narrowly defines the scope of the right, but protects very fiercely—perhaps by the use of a strict kind of judicial scrutiny—what does fall within its coverage.
If that is what the Heller majority opinion intends, however, why does it describe these longstanding regulatory measures as “presumptively lawful” rather than clearly constitutional? Presumptions are subject to rebuttal. The parameters of a right are not.
Alternatively, the scope of the Second Amendment might apply far more broadly. The limitations recognized in Heller might reflect abridgements of the right that we tolerate because they are justified by overwhelmingly important state interests. Thus, felons may have a right to keep and bear arms for self-defense purposes, but their right to do so is outweighed by the state’s interest in preventing individuals who are prone to acting unlawfully from having access to firearms.
The problem with this reading is that many of the limitations Heller identifies are not, in fact, narrowly tailored to serve important state interests. A felon who was convicted of a non-violent crime 15 years ago may have had an unblemished record for the last 14 years and may have a home and family today. If the state continues to deny him, and all others in the class of felons, the right to keep and bear a firearm for home defense purposes, then the state’s decision could only be upheld under fairly deferential review.
One could also posit a doctrinal framework in which questions such as these are evaluated under some form of intermediate-level scrutiny requiring courts to evaluate and balance a felon’s likelihood of using a firearm unlawfully (and society’s interest in restricting his access to firearms) against the individual’s interest in possessing a firearm for defense of his or her home and family. That kind of a nuanced analysis, however, would seem to fly in the face of Heller’s emphatic rejection of ad hoc case by case interest balancing.
In some places, the Court’s opinion in Heller seems almost to imply that calling a right “fundamental” will resolve all difficult disputes about how to protect it. But surely the Court is aware that the term “fundamental right” is no doctrinal talisman. There is no uniform approach to adjudicating cases that implicate laws that are alleged to infringe a fundamental right. Free exercise rights, free speech rights, the right to have an abortion, procedural due process rights, and the right to be free from unreasonable searches and seizures are all fundamental, yet they are protected under very different doctrinal frameworks.
Another Limitation in Heller: The Imprecision About What Laws Burden Gun Ownership or Use Enough to Even Trigger the Second Amendment
There is yet another important omission that magnifies the problems courts confront today: Heller says almost nothing about how courts should determine what constitutes an infringement of the right to keep and bear arms in the first place. Not all government activity that affects a right requires the state to justify its conduct. For example, a law requiring all healthcare providers to be registered with the state would not sufficiently interfere with the right to have an abortion, even though it affects access to abortion services to some extent, to warrant a due process inquiry at all. But what kinds of burdens count under the Second Amendment?
We can derive some guidance from Heller on this question, but in the end, it is not very helpful. We know that banning the possession of handguns in one’s home violates the right to keep and bear arms because most people prefer handguns to long guns for home defense purposes and this preference can be rationalized on pragmatic grounds. Accordingly, the difference in cost and utility between handguns and long guns presumably constitutes a sufficient burden on a person’s ability to defend his or her home to warrant constitutional review. It is entirely unclear, however, what doctrinal standard might capture the magnitude of this burden, and thus enable courts to resolve infringement issues in other cases.
Moreover, there is no way to know whether a burden that infringes the right to keep a firearm for self-defense purposes in one’s home would be sufficient to infringe the Second Amendment in some other context. The Heller Court’s emphasis on home self-defense purposes is largely unexplained. True, the home is a personal sanctuary. But for self-defense purposes, it is hardly the only location where a person might need a firearm to protect herself or her family. A family might be attacked while driving in a car, visiting a mall, or picnicking in a local park. Heller does not elaborate on what, exactly, leads the Court to deem the need to possess a firearm in one’s home particularly acute.
Several answers are possible, but each has different implications for Second Amendment doctrine. Individuals are not especially subject to assault in their homes. Indeed, they are more likely to be attacked in other locations. But they may be uniquely vulnerable in their homes, because they are out of the public eye, so that third parties or the police would have less ability to intervene on their behalf. Alternatively, the state may have less of a justification for interfering with the right to have a firearm in one’s home because the discharge of the weapon in that location poses less of a risk of injury to third parties than would, say, a shootout in the mall or on the freeway. One answer goes to the strength of the right; the other, to the strength of the state’s interest in restricting the right. As is true of so many open issues related to the Second Amendment, Heller creates questions but provides no useful answer to them.
In our next installment, Part Two in this series, we will take up the ways in which some recent and important lower court decisions are grappling with all this Second Amendment uncertainty.