Gun Rights in Scrutiny Land: The Federal Courts Attempt to Claw Back Heller

The developing standard of review under the Second Amendment holds important lessons about the judicial administration of individual rights.  When the Supreme Court affirmed the individual right to arms in District of Columbia v. Heller (2008) it suggested among other things that the Second Amendment protects firearms in “common use”.  This invoked the longstanding view that militia as referenced in the prefatory clause, equals the body of the people, bearing their own private arms in common use at the time.  I and others speculated about the boundaries of this nascent standard.  But it seemed to allow relatively objective treatment of a core category of questions.  

I have shown elsewhere (Harvard Law and Policy Review and Santa Clara Law Review)  how “common use” yields objective assessment of  whether a gun is  functionally, ballistically or numerically common.  This assessment would protect firearms in the family of handguns, shotguns and rifles in the civilian inventory.  It would exclude “dangerous and unusual” weapons, like fully automatic machine guns that are numerically uncommon, functionally distinct and have been specially regulated since the 1930’s.  It also would answer snarky questions, like do individuals have the right to own bazookas, stinger missiles, tanks etc?

The common use standard is however, limited in scope.  It works well for assessing the legitimacy of flat technology bans – the type of question raised in Heller.   Less severe regulations that just impose friction on the right seem to demand the kind of analysis that occurs in “Scrutiny Land”. (I borrow this phrase from the title of Randy Barnett’s 2008 article in the Michigan Law Review).   But when the discussion at oral argument turned to standards of review, Justice Roberts reminded us that the Constitution does not mention levels of scrutiny.    Challenges to flat gun bans (and perhaps ammunition and accessories bans as well) are a good example of cases where scrutiny analysis is unnecessary.   They can be resolved under Heller, through objective assessment of whether the technology is in common use.

The instructive thing is what the unnecessary application of scrutiny analysis to flat technology bans reveals generally about the protection afforded to rights in Scrutiny Land.    As Second Amendment jurisprudence develops, courts seem to be dismissing the distinction between flat bans versus regulatory friction cases.  Instead of deciding ban cases under the common use standard and applying scrutiny analysis to friction cases, the dominant standard in the lower federal courts runs every case through an  approach that ends up in Scrutiny Land.   This approach diminishes the right to arms and illustrates how scrutiny analysis generally is thin protection for individual rights.

One of the best illustrations is the D.C. Circuit’s 2011 decision in Heller v. District of Columbia (Heller II).  The decision addresses a challenge to the gun law devised by the District in response to the Supreme Court’s 2008 Heller decision.   Addressing a variety of challenges to the new law, the Court of Appeals  applies the emerging dominant standard,  asking 1) whether a restriction impinges upon a core right protected by the Second Amendment (with “longstanding” regulations presumptively lawful), and if it does, then 2) whether the restriction passes muster under the level of constitutional scrutiny the court deems appropriate.

One part of the challenged law banned a category of semiautomatic rifles, including the AR 15.  Functionally this rifle is just like countless repeating rifles that have not raised the ire of legislatures.  But based on its styling (it looks like the military M-16) it is perennially on the wish list of guns that should be banned.  There are millions of AR-15s in the civilian inventory.  This is one of the unintended consequences of the now expired 1994 Federal Assault Weapons Ban, which in the same breath banned the AR-15 (and a variety of other guns) and blessed functionally identical guns like the Ruger Mini 14 and cosmetically modified post-ban AR-15’s (e.g., the same guns minus the superfluous flash suppressors, adjustable stocks and bayonet lugs).

Both the majority and the dissent acknowledge that the AR-15 is a gun in common use.  How they proceed from there is illuminating.  The dissent treats common use as a solid liberty-protecting standard.  Guns in common use cannot be banned.

For the majority, acknowledging the AR-15 as a gun in common use is just a rhetorical lead-in to the burgeoning two stage standard of review.  The court found that the D.C. law did in fact burden a core Second Amendment concern.  But at stage two it determined that the ban does not “substantially burden”  the right to self-defense (people could still have handguns and many other long guns).

This reasoning is not derived from Heller and it is interesting to speculate what else would pass muster under this approach.  Pushed hard, it would seem to allow very broad gun bans as long as some core self-defense guns remained legal.  That is not terribly far from the District’s back up argument in Heller (rejected by the majority of the Supreme Court) that there was an implicit self-defense exception to the original D.C. law which required long guns to be kept disassembled and unloaded.  It also hews closer to the balancing approach offered by Justice Breyer’s dissent than to the decision of the Heller majority.

Heller II is instructive on a level beyond the Second Amendment.  It offers an illuminating comparison of decision-making under scrutiny analysis versus a more objectively testable, liberty-protecting standard.   Courts might attempt to manipulate “common use” and we could fight about precisely what the functional, numerical or ballistic thresholds should be.  But those questions are testable within boundaries that courts ultimately cannot escape.  It is the kind of standard that puts clear limits on government and constrains judges.

For contrast, consider the scrutiny analysis under the second stage of the burgeoning standard.  The range of judicial discretion here is remarkable.   The level of scrutiny courts choose to apply is largely outcome determinative and there are no evident restrictions on what level of scrutiny courts can select (except for the consensus that the open pipe of “rational basis” would be insufficient).   In fact, the standard seems to allow courts to create from whole cloth previously unexpressed levels of scrutiny.  For example, the Sixth Circuit has applied “not quite strict scrutiny” to a Second Amendment case.  Evidently this is something more demanding than intermediate scrutiny.  Why this level and not something else?  Who knows?  And from judge to judge, case to case, what do these filters demand?  Who is to say?

Scrutiny analysis may be inevitable in cases about how much friction government can apply to the right to arms.  And scrutiny analysis is less problematic here because the question is one of incremental burden rather than full consumption of the right.  But for flat ban questions where the right to own the gun is fully consumed, scrutiny analysis is much more problematic.  Worse, it blatantly defies Heller, which provides  the objectively testable alternative of common use for deciding such questions.

Courts that apply the burgeoning standard of review beyond the category of friction questions, to uphold flat gun bans that could not survive the common use standard, are diminishing the right to arms, seizing discretion not granted in Heller, and ultimately highlighting the hazards and uncertainty that all rights face in Scrutiny Land.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on October 02, 2012 at 19:06:17 pm

The Second Amendment,along with most of the Bill of Rights has been legislated out of the American Nation. Corrupt,treasonous politicians,judges and bureaucrats don't care about citizen's Rights. Gun Registration,firearms and firearms carrying licensing,gun bans,assault weapons bans and all the other plethora of laws aimed at "controlling firearms" are blatantly UnConstitutional to any reasonable reading of the law of the land. Judicial "interpretation" is bizarre in the least and probably has the founders spinning in their graves. The problem is that the Power Elites control the politicians,judges and laws. The State has almost unlimited resources and manpower to crush any attempt for most individuals to fight for their gun rights. What we must learn from history is that men who seek power first seize the guns. The Communists,Nazis,Fascists and tyrants of both the right and left always want their citizens disarmed. This is why the founders put firearms rights into the Bill of Rights. As a note in history,if 70 years ago every Jew met every Nazi at the door with an assault weapon there may have never been a Holocaust.

read full comment
Image of libertarian jerry
libertarian jerry
on October 03, 2012 at 07:23:36 am

"In common use" is a terrible standard, because the pattern of common use we see today was generated by laws enacted during the decades long period of judicial non-enforcement of the 2nd amendment. It would be like saying that the 14th amendment protects the exercise by blacks of rights they "commonly exercise". It's nothing but the Court's way of grandfathering in violations of the amendment so long as they are not recent or localized, and I believe the majority in Heller were perfectly aware of this.

Further, it permits the law to bring to a halt progress in the area of firearms. Were the "in common use" standard in place for most of the nation's history, we might today be limited to smooth bore flintlocks. Manually operated offset presses. Anything new can't yet be in "common use", and so is fair game for banning.

No, I think Heller one was something of a constitutional abomination. Just not as abominable as the minority wanted to perpetrate.

read full comment
Image of Brett Bellmore
Brett Bellmore
on October 03, 2012 at 17:26:15 pm

The details of common use jurisprudence are undeveloped, but consider this. Firearms technology advances incrementally (like he common law). A fairly administered "functionally common" standard, would accommodate the incremental advancement of the technology - e.g., muzzle to breach loader; loose powder, to paper cartridge, to metallic cartridge; smooth bore to crude rifling to precision rifling; black powder to smokeless powder. Matchlock to flintlock to percussion cap, to metallic primer; the duck foot 4 barrel pistol, to the single action revolver to pump and lever action repeaters to the semiautomatic. These are all plausibly cast as incremental improvements of existing technology, each advancement fitting within the existing envelope of functional commonality.

read full comment
Image of Nick Johnson
Nick Johnson
on October 04, 2012 at 07:27:29 am

" A fairly administered “functionally common” standard, would accommodate the incremental advancement of the technology – "

What, in the entire history of gun control, leads you to expect such a standard to be fairly implemented?

Fairly implemented, separate but equal isn't so bad. But history taught us that separate but equal was always going to be awful in practice, for the simple reason that the people who demanded separate didn't want equal.

What's wrong with literacy tests, which the Supreme Court has ruled are constitutional if fairly implemented? Only that they won't be.

I would say that, if the history of gun control has taught us anything, it has taught us that you can not presume good faith on the part of those who'd regulate gun ownership. "Reasonable regulation" is, in practice, as much an oxymoron as "separate but equal".

Eventually the Court came around to admitting this in the case of race. They're now in the process of figuring it out all over again in response to affirmative action. I believe, if the 2nd amendment is not be be largely moot, it will only be because the Court eventually figures out that this is another case where good faith can't be presumed on the part of regulators.

And why should it every be? Bills of rights are not a response to the assumption that those in power will be good, they're a precaution in case they're bad. They should not be interpreted in a manner which requires those they restrict to be good actors in order for them to be effective.

read full comment
Image of Brett Bellmore
Brett Bellmore
on October 05, 2012 at 11:20:40 am

The entire history of gun control is a complicated thing. As far as federal gun control laws, you have the NFA in 1934 and the FFA in 1938 and then smooth water until the 1968 GCA. By then, repeating technology was already a century old.
Certainly courts might play rough in administering the common use standard. The point is that common use, compared to scrutiny analysis is testable. Comparatively, it allows us (the public, other courts) to say objectively why a decision is wrong. And that helps police judicial decision-making.
There is no getting around the fact that courts must administer the constitution from case to case. Common use is clearly more protective in prohibition cases than scrutiny analysis. What alternative would you propose to decide the boundaries of constitutionally protected arms?

read full comment
Image of Nick Johnson
Nick Johnson
on October 06, 2012 at 09:13:19 am

No, I don't think common use is more protective than scrutiny analysis. Scrutiny analysis is not very protective because it's being done by people who don't want to protect, by bad faith actors who want to bury, not implement, Heller. In the hands of those very same actors, common use won't protect, either.

Yes, it has the advantage of being a little more objective, (Not that objectivity actually gets used by bad actors.) it has the disadvantage that it objectively authorizes putting a freeze on progress in firearms, and grandfathers in the results of regulations during that over 70 years when the 2nd amendment was judicially mooted.

Why, for instance, when we've known for 80 years or more how to reduce the noise of firearms below dangerous levels, do gun owners still suffer hearing damage? Because of that NFA you mentioned preventing noise suppression technology from entering into "common use". Good faith scrutiny analysis would find that regulation can't be sustained. ANY kind of common use analysis would perpetuate it.

In the end, there's no substitute for staffing the judiciary with people who aren't hostile to this liberty. They have too many ways to destroy liberties they don't like, to afford enemies there.

read full comment
Image of Brett Bellmore
Brett Bellmore
on October 24, 2012 at 17:43:41 pm

Professor Johnson, I encourage you to do a study of the 1934 National Firearms Act and Miller v US which, wrongly, is laid out as supporting the NFA. Avenues of approach include, "If I don't need a government issued ID to vote, why do I need one to buy a gun" and "If a $5 poll tax is unconstitutional why is a $200 tax stamp constitutional to buy a pre-86 machine gun or a short barrel rifle/shotgun or a $5 and how is a ban on the sale of post 86 full auto guns even with the $200 tax stamp, which have been in "common use" for 100 plus years constitutional".

read full comment
Image of Fiftycal
on December 07, 2012 at 09:09:48 am

[...] The author, Nicholas J. Johnson, is a Professor of Law specializing in firearm regulation. I found this post of his [...]

read full comment
Image of The importance of judges | The View From North Central Idaho
The importance of judges | The View From North Central Idaho
on October 13, 2013 at 17:01:49 pm

[…] Meanwhile, we can safely say that the report establishes that assault rifles MSR’s meet the Supreme Court’s “common use” standard, as mooted by the Heller decision. Which is a stupid standard as federal regulation has made sure […]

read full comment
Image of NSSF: Average AR-15 Price Down $25 Since 2010 | The Truth About Guns
NSSF: Average AR-15 Price Down $25 Since 2010 | The Truth About Guns

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.