ARTICLE CONTENTS INTRODUCTION 310 I. TRIGGERS FOR TRUMPS: BURDENS AND THE NATURE OF JUDICIAL REVIEW 318 A. Rights as Occasional Trumps 319 B. Bans on Bans: Prohibitions on Mediums of Expression 324 C. Defining Bans: The Denominator Problem in Takings Law 331 D. Ban-scendental Nonsense and the Functional Approach 337 II. IDENTIFYING AND EVALUATING BANS 341 A. The Second Amendment's Denominator Problem 343 B. Functionalism 351 C. Formalism 360 D. Purposivism 367 CONCLUSION 375 INTRODUCTION
The adjudication of constitutional rights is typically understood to involve two steps: a threshold inquiry into the right's applicability, followed by some type of means-end scrutiny. (1) Such scrutiny comes in many different forms depending on the facts at issue. In the equal-protection context, racial classifications trigger strict scrutiny, (2) gender classifications trigger intermediate scrutiny, (3) and nonsuspect classifications trigger rational-basis review. (4) Free-speech challenges implicate different types of review depending on whether the relevant regulation involves commercial speech, (5) content discrimination, (6) a public forum, (7) a nonpublic forum, (8) a limited public forum, (9) alleged libel of a public figure, (10) and so on.
In some instances, however, courts pass right through these first two steps and apply per se rules of invalidity. The application of such rules can be complicated and subject to exceptions, (11) but, generally speaking, in these situations rights behave as Dworkinian trumps, immune to any kind of overt interest balancing. (12) Naturally, this makes it all the more important that the triggering conditions for such rules be carefully demarcated. (13) Sometimes, the condition is constitutionally specified: the government may not ban jury trials in all criminal cases, for example, even if doing so would satisfy strict scrutiny. (14) Forbidden government purpose can also serve as a triggering condition, (15) as in the case of racial animus (16) and viewpoint discrimination. (17)
Another trigger, at least for some constitutional rights, is the conclusion that a regulation constitutes a total prohibition on some aspect of the right--a ban on a constitutionally protected activity or item, for example. The "total" taking of property is one such example; a ban on the productive use of property automatically requires just compensation. (18) Likewise, some courts have held that the Second Amendment categorically forbids prohibitions of an "entire class of arms." (19) And the Supreme Court has, by its own account, "voiced particular concern with laws that foreclose an entire medium of expression," (20) frequently striking down such laws without applying scrutiny. (21) Bans, then, are clearly constitutionally impermissible, at least in some cases. But what makes a regulation a ban? What makes yard signs in residential neighborhoods "an entire medium of expression" (22) or semiautomatic rifles a "class of arms"? (23) And why should a ban be per se invalid?
The question of how to describe a law--whether as a ban, a regulation, or merely an incidental burden--surfaces throughout constitutional law. And yet the Constitution does not always identify the baseline or denominator against which that impact should be measured. If the federal government forbids travel from eight named countries that are more than ninety percent Muslim, but that together represent less than ten percent of the world's Muslim population, is that restriction a presumptively invalid "Muslim ban"? (24) If a state law effectively prohibits all economically beneficial use of a piece of property, does that constitute a total taking of the lot? (25) If a law restricts "an entire class of 'arms,'" does that mean it is automatically unconstitutional, regardless of the weight of the government interest in question? (26)
Although one could illustrate this challenge in virtually any area of constitutional law--free speech and takings provide ready examples (27)--such questions are especially pressing today in the Second Amendment context. Ten years after the Supreme Court's decision in District of Columbia v. Heller, the law surrounding the right to keep and bear arms is taking shape, (28) and in some areas it has incorporated bright-line rules of both validity and invalidity. For instance, in the course of striking down D.C.'s handgun regulation, (29) Justice Scalia's majority opinion concluded that the law prohibited "an entire class of 'arms' that is overwhelmingly chosen by American society for [a] lawful purpose" (30) and was partly for that reason unconstitutional. (31) Some judges have read this to mean that the Second Amendment flatly prohibits bans on certain categories of weapons. (32) (Then-Judge Kavanaugh, for example, once compared bans on entire classes of arms to bans on categories of speech.) (33) Such a per se rule of invalidity would strike down such laws even if they would satisfy strict scrutiny, (34) presenting the inverse of the more common claim that certain weapons are entirely unprotected by the Second Amendment and that bans on them are therefore categorically valid. (35)
But which classes of weapons, and why? If a law prohibits semiautomatic rifles that resemble military weapons, (36) or semiautomatic weapons with high capacity magazines, (37) is that a ban or a restriction? The answer might depend on what one thinks the Second Amendment protects from regulation. "Arms" as a whole? The "lineal descendant[s]" of arms protected at the Founding? (38) Or should the question be whether the prohibited arms are necessary (or even just especially important) for self-defense, which the Court has said is the "core" and "central component" of the right to keep and bear arms? (39)
The answers to those questions have implications for the shape of constitutional jurisprudence more broadly. Because the characterization of a law as a ban tends to trigger a per se rule of invalidity, it is a particularly useful move for those who prefer a categorical approach to constitutional law. For many of its supporters, the value of such an approach is that it does a better job restraining judicial discretion than interest mbalancing, proportionality, and other alternatives, including the tiers of scrutiny. (40) As the Court increasingly seems to favor rules over standards, (41) we might begin to see more cases in which regulations are described as bans. It is especially important, then, to know how such characterizations can be justified.
All laws are bans with regard to that which they prohibit--a driver's-license requirement is a ban on driving without one. But it is hard to see why the label should be of any constitutional consequence if it is simply a way of restating that a law prohibits something. Indeed, the characterization might often escape notice precisely because it is a predicate to the familiar constitutional tests and standards, not a result of them. (42) There are, of course, constitutional tests designed to evaluate whether a burden on protected conduct goes too far--whether it is "undue," for example. (43) But in the context of bans, that doctrinal machinery never gets up and running. Characterizing something as a ban typically frames the challenged law as unconstitutional regardless of whatever scrutiny a court might apply.
This raises the risk that calling a law a ban may simply be an exercise of judicial power masquerading as restraint. If, for example, the definition of a class of weapons is no more certain than the outcome of an interest-balancing test, then invoking the ban framework will simply change--and perhaps obscure--the judicial power and discretion being exercised.
This does not mean that the concept of a ban should be banished from our constitutional jurisprudence, only that it must be brought to the fore and understood. (44) This Article identifies and evaluates three possible ways to do so: through functionalism, (45) formalism, (46) or purposivism. (47) Each approach offers a different way of identifying which regulations count as bans, and identifies why that characterization should matter.
Under the functional approach, to call a law a ban is simply shorthand for concluding that it imposes an impermissibly large burden on rightsholders' ability to effectuate their constitutionally guaranteed interests, such as the "core" Second Amendment interest of self-defense. (48) This explains why Heller treated as per se invalid a D.C. law prohibiting--banning--handguns, which the Court described as "the quintessential self-defense weapon." (49) It also explains why lower courts have generally declined to apply such per se rules to prohibitions on classes of arms--certain semiautomatic rifles and high-capacity magazines, for example--that are not quintessential self-defense weapons. (50)
The formalist approach, by contrast, would define bans based not on their instrumental impact, but by reference to some other metric--a more purely historical approach, for example, or a conceptual identification of what elements of a right are essential and immune to prohibitions. It might be argued, for example, that "lineal descendants" of weapons protected at the Founding are immune to prohibition, not because of their contemporary utility, but because they are the "Arms" specified by the Second Amendment, and to deny them would be to flout the right entirely. Both of these approaches have been tried in class-of-arms cases, and the latter in particular may be useful where some conceptually essential aspect of a right is entirely prohibited, as might be the case for a law that totally prohibits the public carrying of arms, thus arguably eviscerating the right to "bear" arms. (51) Nevertheless, in most instances, formalism will end up involving a fair bit of sub silentio functionalism, which raises concerns that it is not as transparent and discretion-restricting as supporters might suppose.
Finally, in some...