Second Amendment standards of review in a Heller world.

• Author: Lund, Nelson
• Position: Gun Control and the Second Amendment: Developments and Controversies in the Wake of District of Columbia v. Heller and McDonald v. Chicago

Introduction I. The Supreme Court's Heller Decision II. The D.C. Circuit's Heller II Decision A. The Majority Opinion B. The Kavanaugh Dissent III. Applying Heller A. The Rights and Wrongs of the Majority Approach in Heller II B. A Better Approach: Eze11 v. City of Chicago Conclusion INTRODUCTION

In 2008, in District of Columbia v. Heller, the Supreme Court invoked the Second Amendment to invalidate a law that forbade almost all citizens from possessing a handgun or other operable firearm. Since that decision was announced, the lower courts have resolved a large number of Second Amendment challenges to less restrictive gun control laws. This Article reviews and evaluates the principal debates that have arisen in the federal courts, focusing primarily on a sharply divided panel decision from the D.C. Circuit and a majority opinion from the Seventh Circuit. The three opinions considered in this Article articulate the most important extant alternative interpretations of the Supreme Court's Heller opinion. The Article concludes that the approach taken by the Seventh Circuit is superior to either of the approaches offered in the D.C. Circuit case.

1. THE SUPREME COURT'S SELLER DECISION

   For a long time, gun rights advocates have hoped that the Supreme Court would begin reviewing gun control laws under the standard of "strict scrutiny," which requires the government to demonstrate that its regulations are narrowly tailored to serve a compelling governmental interest. (1) Gun control advocates would prefer "rational basis" review, which requires the government only to articulate some legitimate purpose that the legislature could conceivably have sought to serve with its regulations. (2)

   In District of Columbia v. Heller, (3) the seminal case involving a general ban on the possession of any handgun or other operable firearm, the United States urged the Court to adopt a standard of "intermediate scrutiny." Relying primarily on a First Amendment free speech case upholding a ban on write-in voting, the federal government urged the Court to remand the case with instructions to balance the degree of the burden on constitutionally protected conduct against the strength of the government's regulatory interests. (4) When the Solicitor General pressed this point at oral argument, Chief Justice Roberts expressed his skepticism:

   Well, these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can't take the gun to the marketplace and all that, and determine how these--how this restriction and the scope of this right looks in relation to those? I'm not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don't know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case? (5) When the Court issued its opinion in Heller, Justice Scalia's majority opinion rather pointedly declined "to articulate some very intricate standard." (6) But neither did the Court adopt the approach that Chief Justice Roberts suggested at oral argument. Notwithstanding the opinion's extended examination of the historical record before and after the ratification of the Second Amendment, it did not "determine the scope of the existing right that the amendment refers to." (7) The Chief Justice clearly was referring to the scope of the right to bear arms as it was understood in 1791, and the Court's opinion does pay lip service to that standard. (8) But this was not the basis for the decision.

   Instead, Heller rejected the handgun ban because it constituted a prohibition on an entire class of arms that is overwhelmingly chosen for self-defense by American society today. (9) The Court then removed any doubt about its rejection of Chief Justice Roberts's suggestion by endorsing a wide range of gun control regulations that had no analogues in 1791:

   * Bans on the possession of firearms by felons and the mentally ill. (10)

   * Bans on carrying firearms "in sensitive places such as schools and government buildings." (11)

   * Laws imposing conditions and qualifications on the commercial sale of arms. (12)

   * Bans on carrying concealed weapons. (13)

   * Bans on "those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns" and apparently machineguns. (14)

   Had the Court simply evaluated the D.C. handgun ban by comparing it with the various regulations that existed in 1791, it might have been a very easy case. Nothing remotely resembling a ban on handguns existed at that time, before that time, or long after that time. But the same could be said about almost all of the modern forms of gun control, for there were very few restrictions on the private possession of arms during the founding era. The common law did prohibit private citizens from terrifying the public by going armed in public with dangerous and unusual weapons. (15) And a few jurisdictions had adopted safety regulations involving the storage of highly flammable gunpowder or the irresponsible discharge of weapons. (16) But that's about it. (17)

   The problem with the approach that the Chief Justice suggested at oral argument is that the paucity of gun control regulations in the framing era does not necessarily imply that the Second Amendment was meant to proscribe all regulations except those resembling laws that had already been adopted. The Amendment might have been meant to prevent the federal government from overriding or supplementing state decisions about gun control, but it is highly implausible that it was meant to permanently forbid Congress from imposing regulations in the District of Columbia and the territories that went beyond what the states had chosen to impose on their own citizens before 1791. (18)

   At that time, American citizens had an almost unlimited right to arms by virtue of the fact that legislatures had chosen to impose almost no regulations on them. But such inaction did not debar legislatures from altering their citizens' legal rights in the future. What Chief Justice Roberts and Justice Scalia call, respectively, the "existing" or "pre-existing" right constitutionalized by the Second Amendment (19) would therefore have to be understood as protecting whatever individual freedom legislatures were obliged to respect. But we have virtually no historical evidence about the scope of that limitation on government because it had not become a matter of public controversy.

   Faced with the impossibility of actually adopting the historical approach that the Chief Justice suggested at oral argument, the Court nonetheless was unwilling to adopt what he called "an all-encompassing standard" like strict or intermediate scrutiny. (20) Heller did expressly reject the rational basis test, (21) and it held that a ban on the possession of handguns in the home was unconstitutional. (22) As noted above, the opinion also endorsed several forms of gun control in dicta, but without offering any clear indication of why the Court regarded these regulations as constitutionally permissible.23 Beyond that, the Court provided little guidance, and virtually no clear guidance.

   Heller might have been regarded as an exercise in judicial restraint if it had simply invalidated the D.C. law on the ground that it severely compromised what the Court called "the core lawful purpose of self--defense." (24) Unfortunately, Justice Scalia's approval of various regulations not at issue in the case, combined with his lackadaisical reasoning in support of several legal conclusions, created a mist of uncertainty and ambiguity. (25)

   After McDonald v. City of Chicago (26) applied the Second Amendment to the states, the need for a workable framework of analysis became more acute because state and local gun control laws are more numerous and often more restrictive than nationally applicable regulations. (27) Somewhat surprisingly, perhaps, the federal courts of appeals have quickly and fairly uniformly begun to coalesce around an interpretation of Heller that provides such a framework. The emerging consensus can be roughly summarized as follows:

   * Some regulations, primarily those that are "longstanding," are presumed not to infringe the right protected by the Second Amendment. (28)

   * Regulations that severely restrict the core right of self-defense are subject to strict scrutiny. (29)

   * Regulations that do not severely restrict this core right are subject to intermediate scrutiny. (30)

   This framework is closely analogous to what Chief Justice Roberts called "standards that apply in the First Amendment[, which] just kind of developed over the years as sort of baggage that the First Amendment picked up." (31) The Heller Court seems to have self-consciously refrained from adopting such a framework, but neither did it specify any alternative.

   The lower courts have not enjoyed the luxury of confining their rulings to anomalous laws aimed at disarming the civilian population, which Heller said would be invalid "[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights." (32) Faced with harder cases, and with the fogginess of the Heller opinion, these courts understandably have reached for a framework resembling the familiar "baggage" picked up by the First Amendment. And Heller did hint at such an approach through its repeated references and analogies to the First Amendment and to First Amendment case law. (33)

   We might therefore expect Second Amendment jurisprudence...