History, Heller, and high-capacity magazines: what is the proper standard of review for Second Amendment challenges?

• Author: Colvin, Lindsay

Introduction I. The Contours of Modern Second Amendment Jurisprudence: From Miller to Heller A. Second Amendment Jurisprudence Before 2008 B. District of Columbia v. Heller. A Novel Approach C. Heller's Limits: Presumptively Lawful Regulations and the Common Use Test D. Complications Posed by the Common Use Test II. Conflicting Views on the Proper Standard of Review and the Unique Challenges Posed by High-Capacity Magazine Legislation A. Expanding Heller to the States: McDonald v. City of Chicago B. Evolution of the Common Use Test After McDonald C. Popular Option: The Marzzarella Two-Step D. Reframing the Question: Judge Kavanaugh Dissents E. Recent Judicial Approval of the Kavanaugh Approach F. The Puzzle of High-Capacity Magazine Restrictions III. Text, History, and Tradition, Not a Two-Step Test A. The Kavanaugh Approach Permits Increased Judicial Flexibility B. The Kavanaugh Approach Creates More Predictable Results C. The Kavanaugh Approach Offers Significant Ease of Use D. The Kavanaugh Approach Is More Consistent with Supreme Court Precedent E. Applying the Kavanaugh Approach to High-Capacity Magazine Restrictions F. Applying the Marzzarella Two-Step Test to High Capacity Magazine Restrictions G. High-Capacity Magazine Restriction Hypothetical Illustrate the Superiority of the Kavanaugh Approach H. Unresolved Problems Surrounding the Kavanaugh Approach Conclusion INTRODUCTION

In 1996, Daniel Chovan was convicted in California state court of a misdemeanor that did not involve a gun. (1) After inflicting corporal injury on his spouse, Cheryl Fix, he was sentenced to 120 days in jail and three years of supervised release. (2) Although Chovan did not use a firearm in committing the offense, he was banned from possessing a gun for the rest of his life under a federal statute applicable only to persons convicted of misdemeanor domestic violence crimes. (3) Chovan challenged the law as an unconstitutional infringement of his Second Amendment rights. (4) In evaluating Chovan's case, the Ninth Circuit was faced with a problem: what standard of review should apply to Chovan's constitutional claim? (5) Absent clear guidance from the Supreme Court, the Ninth Circuit was left to choose its own standard. (6) Even though the Ninth Circuit found that the federal statute substantially burdened Chovan's Second Amendment rights, it opted to grant the federal government moderate deference, and applied intermediate scrutiny. (7) After examining the regulation through this lens, the Ninth Circuit concluded that the statute was constitutional. (8) Thus, without any approval from the Supreme Court regarding its methodology, the Chovan court both independently selected a standard of review for a constitutional challenge and upheld severely burdensome legislation by virtue of its choice.

Chovan is not an isolated example of constitutional confusion. In fact, it is simply the most recent example of the legal debate surrounding the proper standard of review for the Second Amendment. The proper analytical framework for statutes challenged as an unconstitutional infringement on individual Second Amendment rights after District of Columbia v. Heller has emerged as both a hotly contested and imprecise zone of jurisprudence for lower courts. (9) As an increasing number of Second Amendment cases wend through the federal system, these courts have been faced with two types of challenged gun statutes. This Note defines those two types as statutes that "prohibit" and those that "limit." "Prohibiting" statutes constitute blanket bans on certain weapons or materials, and include regulations like the District of Columbia (District) handgun ban struck down in Heller. (10) "Limiting" statutes create regulations on certain types of weapons or related activities, such as concealed carry laws or purchase restrictions. (11) Prohibiting statutes are immediately more suspect after Heller, which explicitly decried legislation "ban[ning] ... an entire class of 'arms' that is overwhelmingly chosen by American society" as an unconstitutional restriction on the right to keep and bear arms. (12) But because the Court failed to specify a level of scrutiny for Second Amendment claims in any form, ruling upon both types of legislation has presented a complicated task for lower courts. (13)

In Heller's wake, two opposing points of view have emerged regarding its proper application in both categorizing statutes affecting the Second Amendment and in classifying their constitutionality. Part I of this Note traces the development of the Supreme Court's approach to the Second Amendment both before and immediately after the Heller decision. Part II examines the evolution of Second Amendment jurisprudence since Heller, and posits that legislation regulating high-capacity magazines represents a markedly gray area for judges outlining the contours of the right to keep and bear arms. Part II also outlines the analytical options for courts faced with Second Amendment challenges that have developed since Heller. The majority of courts faced with Second Amendment issues have opted to pursue a two-step, balancing analysis. First, courts choosing this method decide whether the statute regulates conduct that falls within the scope of the Second Amendment. (14) If so, the court then engages in some level of heightened scrutiny of the regulation, which emerges almost invariably as a type of intermediate scrutiny. (15) Alternatively, a small group of justices led by Judge Brett Kavanaugh of the D.C. Circuit (16) have rejected the use of balancing tests as inconsistent with Heller. Instead, these judges rely upon the "common use test" delineated in Heller, and employ an evaluation of the text, history, and tradition of the challenged statute and the Second Amendment. (17)

Part III of this Note uses high-capacity magazine regulations as a test case for the application of both methodologies, and finds that the approach recommended by Judge Kavanaugh is the preferable option. Because the Kavanaugh approach avoids the judicial interest-balancing so disfavored by the Supreme Court in Second Amendment cases, this Note concludes that Judge Kavanaugh's analysis is the proper choice for courts faced with Second Amendment challenges. This Note arrives at this result because the Kavanaugh approach is flexible, predictable, easy to apply, and faithful to the core principles articulated by the Supreme Court.

1. THE CONTOURS OF MODERN SECOND AMENDMENT JURISPRUDENCE: FROM MILLER TO HELLER

   1. Second Amendment Jurisprudence Before 2008

      The words of Heller are familiar to all Second Amendment scholars, although they have managed to produce a breathtaking divergence of interpretation. Before Heller's issuance in 2008, courts interpreted Second Amendment cases almost solely through the lens of the canonical case United States v. Miller. (18) In Miller, the U.S. Supreme Court upheld a federal statute prohibiting the interstate transport of short-barreled shotguns, declaring that possession or use of this type of firearm bore "no reasonable relationship to the preservation or efficiency of a well regulated militia." (19) The Miller Court determined that the Second Amendment should be interpreted and applied with a careful eye to the continuation and effectiveness of state militias. (20) Justice McReynolds, writing for the majority, defined a militia as "comprised [of] all males physically capable of acting in concert for the common defense" who were "expected to appear bearing arms supplied by themselves and of the kind in common use at the time." (21) As such, lower court opinions expound upon the connection between the Second Amendment and its historical application to the state militias referenced in Miller, and generally limit the scope of weapons protected under the amendment to those generally utilized at the time of its passage. (22) However, the Miller opinion was also notoriously "opaque and open-ended," and seemed to raise more questions than it answered about the scope of the Second Amendment. (23)

      For the next seven decades, state and federal courts failed to agree upon a uniform evaluation of Miller's meaning. (24) Some embraced a "state's right" theory, interpreting Miller to mean that the Second Amendment protected states in the maintenance of their militias against possible interference by the federal government. (25) These courts held that individuals lack standing to challenge gun legislation, because an individual right to keep and bear arms does not exist. (26) Other courts, in contrast, adopted a "collective right" approach, and held that the Second Amendment protected only the collective possession of arms bearing a reasonable relationship to the preservation or efficiency of a well-regulated militia. (27)

      Most courts considering the issue utilized some form of rational basis review when evaluating firearm regulations. (28) Gun regulations were upheld in almost every instance in the wake of the Miller decision. (29) But historical interpretation of Miller did not garner universal acceptance. For instance, scholar Brannon Denning argued over ten years before the Heller decision that applying Miller to deny an individual's right to keep and bear firearms "strayed so far from the Court's original holding to the point of being intellectually dishonest." (30) If the Court truly intended to limit the use and possession of firearms to a militia, Denning contended, the case would have been disposed of on standing grounds, because the defendants in the case were not militia members. (31) Had the Miller Court foreclosed an individual right to bear arms, he argued, the replacement of state militias with the National Guard would render the Second Amendment, like the Third Amendment, "little more than an anachronistic curiosity." (32)

   2. District of Columbia v. Heller. A Novel Approach

      Faced with the opportunity to redraw the boundaries of the Second Amendment, the Heller Court...