In Joseph Ellis’ view, it’s just fine for us to love the Founders, but not for anyone to understand them in ways that might derail the march of progress.
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.