Scrutinizing the Second Amendment.

• Author: Winkler, Adam

One overlooked issue in the voluminous literature on the Second Amendment is what standard of review should apply to gun control if the Amendment is read to protect an individual right to bear arms. This lack of attention may be due to the assumption that strict scrutiny would necessarily apply because the right would be "fundamental" or because the right is located in the Bill of Rights. In this Article, Professor Winkler challenges that assumption and considers the arguments for a contrary conclusion: that the Second Amendment's individual right to bear arms is appropriately governed by a deferential, reasonableness review under which nearly all gun control laws would survive judicial review. Professor Winkler's discussion is informed by the example of state constitutional law, where the individual right to bear arms is already well established. Forty-two states have constitutional provisions guaranteeing an individual right to bear arms and, tellingly, every state to consider the question applies a deferential reasonable regulation standard in arms rights cases. No state applies strict scrutiny or any other type of heightened review to gun laws. Since World War II, the state courts have authored hundreds of opinions using the reasonable regulation test to determine the constitutionality of all sorts of gun control laws. All but a fraction of these decisions uphold gun control laws as reasonable measures to protect public safety. If the federal courts follow this universal practice of the state courts and apply the reasonable regulation standard, nearly all gun control laws will survive judicial review. Moreover, as Professor Winkler argues, even if the federal courts decide to apply strict scrutiny, most weapons laws might still be upheld due to the overwhelming governmental interest in public safety. If so, then any eventual triumph of the individual-rights reading of the Second Amendment is likely to be more symbolic than substantive.

TABLE OF CONTENTS INTRODUCTION I. WHOSE STANDARD IS THIS ANYWAY? A. Implementing Rights B. Standards in Second Amendment Law and Literature II. SCRUTINIZING THE ARGUMENTS FOR SECOND AMENDMENT STRICT SCRUTINY A. The Bill of Rights Argument B. The Fundamental Rights Argument C. Theories of Strict Scrutiny 1. Invidious Motive Theory of Strict Scrutiny 2. Cost-Benefit Theory of Strict Scrutiny D. Strict Scrutiny in the States III. TOWARD A REASONABLE SECOND AMENDMENT A. Text B. History B. Structure IV. THE PRACTICE OF REASON A. The Reasonable Regulation Standard B. The Breadth of Deference 1. Bans on Particular Types of Weapons 2. Felon Possession Bans 3. Licensing Laws C. The Limits of Reasonableness V. RECONSIDERING HEIGHTENED SECOND AMENDMENT SCRUTINY A. Second Amendment Strict Scrutiny Applied B. A Brief Note on Intermediate Scrutiny CONCLUSION INTRODUCTION

The lively debate over the Second Amendment has focused on whether it protects a right of individuals to possess arms or a collective right of states to maintain militias free from federal interference. (1) The last Supreme Court decision to address the issue was way back in 1939, when in United States v. Miller (2) the Court indicated that the Second Amendment guaranteed a collective right of states rather than an individual right. (3) Much recent legal scholarship has critiqued the collective-rights view and argued that the amendment was intended to protect an individual "right to possess firearms for personal self-defense and the defense of others." (4) Over the past few years, the individual-rights view has won over at least one federal circuit court (5) and has become the official position of the Bush Administration's Department of Justice. (6) It is clear that the individual-rights reading of the Second Amendment is gaining headway in American legal thought. (7)

Mostly overlooked in the literature, however, is the important question of what standard of review would apply to laws burdening the right to bear arms if the Court were to adopt the individual-rights approach. (8) No right is absolute, and the extent to which legislation can permissibly burden a right is largely determined by the doctrinal rules, tests, and other devices the Court adopts to "implement" the right. (9) One prominent way of implementing constitutional mandates is a standard of review, such as strict scrutiny or rational basis, which is used to judge the constitutionality of laws burdening the right. Yet in the Second Amendment literature, there has been little sustained attention to what standard would be used under the individual-rights reading.

The lack of attention to Second Amendment standards is possibly due to the "assumption ... that an individual rights approach would mean strict scrutiny ... when courts appraise the constitutionality of gun control measures." In this Article, I challenge that assumption and consider the arguments for a contrary conclusion, that the Second Amendment's individual right to bear arms is appropriately governed by a deferential, reasonableness review under which nearly all gun control laws would survive judicial scrutiny.

The discussion here is informed by the example of state constitutional law, where the individual right to bear arms is already well established. Forty-two states have constitutional provisions guaranteeing an individual right to bear arms (11) and, tellingly, the courts of every state to consider the question apply a deferential "reasonable regulation" standard in arms rights cases. (12) No state's courts apply strict scrutiny or any other type of heightened review to gun laws. (13) Under the standard uniformly applied by the states, any law that is a "reasonable regulation" of the arms right is constitutionally permissible. Since World War II, state courts have authored hundreds of opinions using this test to determine the constitutionality of all sorts of gun control laws. All but a tiny fraction of these decisions uphold the challenged gun control laws as reasonable measures to protect public safety. If the federal courts follow suit and apply the reasonable regulation standard, nearly all gun control laws will survive judicial review--despite the construction of the Second Amendment to include an individual right. As a result, any eventual triumph of the individual-rights reading of the Second Amendment is likely to be more symbolic than substantive.

Part I of this Article examines how the standard of review question has been addressed in the two most important legal developments supporting the individual-rights construction of the Second Amendment: United States v. Emerson, in which a federal circuit court formally read the amendment to protect an individual right; (14) and (former) Attorney General John Ashcroft's Memorandum to United States Attorneys, which adopted the individual-rights construction as the official position of the executive branch. (15) While flirting with strict scrutiny, both balk at adopting a stringent standard that might potentially interfere with ordinary gun regulation. This Part also surveys the relatively thin scholarly literature on Second Amendment standards. Although some have suggested strict scrutiny, there has been no thorough analysis of whether that standard is appropriate for the arms right.

Part II begins to fill this gap and considers the arguments in support of Second Amendment strict scrutiny. Some commentators have assumed that strict scrutiny would automatically apply because the right is textually grounded in the Bill of Rights. Others have claimed that strict scrutiny would necessarily apply if the right to bear arms is deemed a "fundamental" right. Neither argument is persuasive. Most provisions in the Bill of Rights do not trigger strict scrutiny, and the oft-repeated linkage between fundamental rights and strict scrutiny is more rhetoric than doctrinal reality. Moreover, a Second Amendment right to bear arms would not fit with the underlying theoretical arguments for heightened judicial review generally. Motivated by public safety, gun control is not inherently invidious such that a presumption of unconstitutionality is warranted.

Part III examines the reasons for deferential reasonableness review of laws burdening the Second Amendment right to bear arms. The text, history, and structure of the Second Amendment all support the application of a deferential form of scrutiny. The text of the amendment recognizes that some regulation of firearms is "necessary," and the history of the right to bear arms at both the federal and state levels makes clear that the Founding generation, and those subsequent, did not generally view gun control as contrary to the existence of an arms right. Moreover, strong structural reasons counsel in favor of relatively lenient judicial review: heightened scrutiny would present significant problems of federalism, separation of powers, and institutional competence for the courts.

Part IV examines the reasonable regulation standard used in state constitutional law and considers what Second Amendment doctrine might look like under that test. Over the past sixty years, the state courts have used the reasonable regulation standard to uphold nearly all of the gun control laws that have been challenged on right-to-bear-arms grounds. Although not quite the same as the rational basis test widely used elsewhere in constitutional law, the reasonable regulation standard is equally deferential, and courts accept broad, overinclusive laws that would ordinarily be expected to fail any form of heightened scrutiny. The standard does have its limits; laws that are arbitrary or so restrictive as to "destroy" or "nullify" the right may be deemed unreasonable. Few gun control laws, however, rise to this level. Since World War II, only six published opinions in the forty-two states combined have invalidated gun control laws (or their application to particular individuals) under the state right-to-bear-arms guarantees.

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