Second Amendment redux: scrutiny, incorporation, and the Heller paradox.

• Author: Levy, Robert A.

In District of Columbia v. Heller, (1) the final opinion of the Supreme Court's 2007 term, Justice Antonin Scalia reinvigorated the Second Amendment. Writing for a 5-4 majority, Justice Scalia held unequivocally that the Second Amendment protects an individual right to possess a firearm in the home for self-defense, unconnected with militia service. (2) He also held that the three Washington, D.C., laws that Heller challenged were unconstitutional: first, the outright ban on all handguns acquired after 1976; second, the ban on carrying handguns acquired before 1976 from room to room without a permit, which could not be obtained; and third, the requirement that rifles and shotguns in the home had to be unloaded and either disassembled or trigger-locked. (3)

Three issues received less attention in the majority and dissenting opinions, but have significant implications. First, what gun regulations are now permissible? Second, will the Second Amendment apply against state and local governments? Third, was the Heller decision a hidden victory for gun controllers?

1. SCRUTINY: WHAT GUN REGULATIONS ARE PERMISSIBLE AFTER HELLER?

   Justice Scalia acknowledged that the Second Amendment, like the First, is not absolute. He noted, for example, that courts had upheld concealed carry prohibitions in the past, although he stopped short of saying courts should uphold them in the future. (4) The same goes for licensing requirements, which Heller did not challenge. (5) Justice Scalia went even further to state that the Court's opinion did not "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 arms." (6) He added that he could also find support in "the historical tradition of prohibiting the carrying of dangerous and unusual weapons." (7)

   Heller was likely well advised not to have antagonized potential allies among the Justices by demanding deregulation of weapons like machine guns. Heller's success was due in part to the moderate, incremental relief that he sought. Subsequent cases will have to resolve what weapons and persons can be regulated and what restrictions are permissible. Those questions will depend in large measure on the standard of review that the Court chooses to apply--an issue Heller does not resolve despite considerable attention to that subject in various amicus briefs, including one by Solicitor General Paul Clement.

   Solicitor General Clement suggested that the Court apply a form of "heightened" scrutiny in reviewing gun regulations. Specifically, he advised the Court to consider "the practical impact of the challenged restriction on the plaintiff's ability to possess firearms for lawful purposes (which depends in turn on the nature and functional adequacy of available alternatives)." (8) Although Solicitor General Clement acknowledged that the D.C. gun ban "may well fail such scrutiny," he expressed concern that the circuit court had mistakenly applied a different per se test, which would preclude "any ban on a category of 'Arms' that can be traced back to the Founding era." (9)

   Heller argued that the D.C. gun ban was unconstitutional no matter which standard of review the Supreme Court applied. Accordingly, said Heller, the Court did not have to address the standard of review question. On the other hand, should the Court decide to tackle that issue, Heller urged that "strict," not heightened, scrutiny be the standard. (10) To justify a gun control regulation under strict scrutiny, the government would have to demonstrate a compelling need for the law and then show that any restrictions were narrowly tailored--that is, no more invasive than necessary to achieve the government's objectives. (11) Traditionally, the Court has been more rigorous in scrutinizing government regulations that infringe on a "fundamental" right: one that is "implicit in the concept of ordered liberty" (12) or "deeply rooted in this Nation's history and tradition[s]." (13) Virtually all of the first eight amendments qualify, (14) and it is difficult to imagine that the right to keep and bear arms is an exception to the rule.

   Ultimately, the Court agreed with Heller that D.C.'s ban on all functional firearms in the home is unconstitutional "[u]nder any of the standards of scrutiny [the Court has] applied to enumerated constitutional rights." (15) But the Court did not choose a specific standard. In later cases it might apply something less than the strict scrutiny standard that Heller had suggested. On the other hand, the Court categorically rejected "rational basis" scrutiny, which has been a rubber stamp for nearly all legislative enactments. (16) The Court also rejected Justice Stephen Breyer's "interest-balancing" test, which is merely a repetition of the process that legislatures already go through in crafting regulations. (17) Something higher is demanded, said Justice Scalia, when an express constitutional right is at issue. (18) At a minimum, it appears that the Court will adopt some version of intermediate or heightened scrutiny.

   In fact, Justice Scalia's citation in footnote twenty-seven to United States v. Carolene Products (19) is illuminating on this point. Carolene was the 1938 case that effectively bifurcated our rights. The Court rigorously protects some rights, such as those codified in the Bill of Rights, but rubber-stamps regulations of second-tier rights, such as those related to contract, property, and commerce. By positioning the right to keep and bear arms squarely within the camp of specific, enumerated rights, and linking the Second Amendment to "the freedom of speech, the guarantee against double jeopardy, [and] the right to counsel," (20) Justice Scalia sent an unmistakable signal that the Court will rigorously review gun control regulations. It is fair to say then that the standard of review will have more than a few teeth in it.

   That outcome will not make the antigun crowd happy. When it comes to the Second Amendment, they believe in greater judicial deference to legislative judgments. The right to keep and bear arms has, they say, "immediate and direct implications for the health and safety of others"--a factor that does not apply to, for example, the First Amendment. (21) Yet the First Amendment protects even "advocacy of the use of force or of law violation" unless it is intended and likely to incite or produce such action. (22) Advocating force or law violation can have greater implications for public safety than the right of D.C. residents to keep a handgun in their home.

   Another argument from gun controllers is that "state courts ... have universally rejected strict scrutiny or any heightened level of review in favor of a highly deferential 'reasonableness' test that has been met by virtually every gun control law challenged in the state courts." (23) First, that statement is inaccurate. Through 2003, state courts voided laws infringing on the right to keep or bear arms on twenty-four occasions. (24) Many of the cases overturned carry restrictions, (25) which are surely less of a restraint on Second Amendment rights than the outright prohibitions at issue in places like D.C., Chicago, and San Francisco.

   Second, there is no inherent incompatibility between...