Permissible gun regulations after heller: Speculations about method and outcomes

UCLA Law Review

Volumn 56, Issue 5, 2009, Pages 1425-1442

  Tushnet, Mark ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 78650567583     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (65)

1. 128 S. Ct. 2783 (2008).
2. Id. at 2816-17.
3. For sake of simplicity, this Essay will use the phrase "originalist analysis" to incorporate both an originalist and traditionalist approach.
4. For the distinction between these methods, see infra text accompanying notes 11-14.
5. Stuart Banner calls the issues I discuss in this Essay questions about the Second Amendment's "plumbing. What exactly will the doctrine look like? What kinds of regulation will be unconstitutional? Which guns? Which people?" Stuart Banner, The Second Amendment So Far, 117 HARV. L REV. 898, 907 (2004).
6. See, e.g., Heller, 128 S. Ct. at 2820 ("[Certain regulations] are akin to modern penalties for minor public-safety infractions....").
7. Id. at 2817 n.27.
8. See, e.g., United States v. Virginia, 518 U.S. 515 (1996) (seeming to apply a form of intermediate scrutiny not substantially different from strict scrutiny in a case involving gender discrimination).
9. For a discussion of some of the evidence, see MARK V. TUSHNET, OUT OF RANGE: WHY THE CONSTITUTION CAN'T END THE BATTLE OVER GUNS 85-102 (Geoffrey R. Stone ed., 2007).
10. See, e.g., United States v. Luedtke, 589 F. Supp. 2d 1018, 1021 (E.D. Wis. 2008) (using a historical analysis, that "[i]n the classical republican political philosophy ascendant at the founding, the concept of a right to arms was tied to that of the 'virtuous citizen,"' to uphold a relatively new prohibition on the possession of guns by those subject to a domestic violence order).
11. I have little doubt that gun rights and gun-control proponents will generate information about, these matters, although I am not confident about how quickly they will do so. In any event, lower courts will likely rely on studies generated by partisans only to bolster conclusions they reach for other reasons. In contrast, Heller's originalism was enabled by studies undertaken by academics whom the Court could fairly regard as dispassionate and nonpartisan.
12. But see Adam Winkler, Scrutinizing the Second Amendment, 10.5 MICH. L. REV. 683 (2007) (arguing that state courts interpreting guarantees of an individual right to gun ownership in state constitutions have not applied a high standard of review).
13. This is not to say, though, that lower court judges who did apply strict scrutiny would inevitably invalidate challenged regulations. I suspect that lower court judges are likely to find that many regulations, especially those reasonably analogous to the longstanding ones that the Court in Heller purported to leave untouched, survive what they will call strict scrutiny but that, on dispassionate analysis, probably amounts to intermediate scrutiny. (I have in mind here the obverse of the process by which the Court initially purported to rely solely on the rational-basis standard to invalidate a gender discrimination in Reed v. Reed, 404 U.S. 71 (1971), and then rather rapidly came to understand that it really was using intermediate scrutiny in gender discrimination cases.)
14. It is probably worth noting that over-breadth concerns, or something quite like them, are a routine part of strict scrutiny, which asks, among other things, whether the regulation in question is narrowly tailored toward accomplishing important public policies.
15. See, e.g., J. Harvie Wilkinson III, Of Guns, Abortion and the Unraveling Rule of Law, 95 VA. L REV. 253, 254 (2009) (criticizing Heller as "an act of judicial aggrandizement: a transfer of power to judges from the political branches of government - and thus, ultimately, from the people themselves").
16. See Winkler, supra note 12.
17. See Mark Tushnet, The United States: Eclecticism in the Service of Pragmatism, in INTERPRETING CONSTITUTIONS: A COMPARATIVE STUDY 7 (Jeffrey Goldsworthy ed., 2006).
18. Part II of this Essay examines three categories of regulations that might be adopted over the next few years, and shows how the standard-of-review question is likely to arise as lower courts consider the regulations' constitutionality.
19. They will likely be nominated by a president for whom Second Amendment rights are not a matter of central concern.
20. For further discussion, see Adam Winkler, Heller's Catch-22, 56 UCLAL. REV. 1551 (2009).
21. Mark Tushnet, Symposium Foreword: The First (and Last?) Term of the Roberts Court, 42 TULSA L. REV. 495, 501 (2007).
22. Note, though, that the shoot-the-moon strategy assumes that the reconstituted Court will feel some obligation to respect as good precedents the decisions made when the strategy was being executed. Especially in light of the likely tensions such a strategy would create within the Court, I personally am skeptical that the decisions would be so regarded, and am therefore skeptical about the strategy's rationality.
23. I do not discuss some policy proposals popular among gun-control proponents-for example, limitations on the number of guns that can be purchased within some specified period (usually, one month), and closing what gun-control proponents call the gun-show loophole, allowing some gun sales at organized gun shows to occur without going through the verification processes required for sales by federally registered gun dealers-because I find it impossible to construct plausible constitutional arguments, even after Heller, against them. These proposals implicate contested questions regarding their necessity and efficacy, but as far as I can tell, no interesting constitutional questions.
24. Such regulations will also have to survive challenges under state constitutions-either state constitutional guarantees of gun rights or the allocation of regulatory authority between state and city legislatures (preemption versus home rule).
25. But see Lawrence Rosenthal, Second Amendment Plumbing After Heller: Of Standards of Scrutiny, Incorporation, Well-Regulated Militias, and Criminal Street Gangs (Chapman Univ. Sch. of Law, Research Paper No. 09-302, 2009), available at http://ssrn.com/abstract= 1245402 (arguing that the evidence for the public understanding of the Fourteenth Amendment as incorporating either the Bill of Rights as a whole or the Second Amendment specifically is at best not overwhelming).
26. See Matthew 23:24 ("Ye blind guides, which strain at a gnat, and swallow a camel.").
27. See Presser v. Illinois, 116 U.S. 252 (1886);
28. United States v. Cruikshank, 92 U.S. 542 (1875).
29. See Nordyke v. King, 563 F.3d 439 (9th Cir. 2009) (holding that the Fourteenth Amendment's Due Process Clause incorporates the Second Amendment, and distinguishing prior Supreme Court decisions on the ground that they held only that the Fourteenth Amendment's Privileges and Immunities Clause did not incorporate the Second Amendment).
30. District of Columbia v. Heller, 128 S. Ct. 2783, 2813 n.23 (2008).
31. See, e.g., Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989).
32. Id. at 484.
33. See Nordyke, 563 F.3d at 457 n.16 (after asserting that "there is no Supreme Court precedent directly on point," citing Rodrigues de Quijas, 490 U.S. at 484, with a "cf." signal).
34. Notably, Nordyke is not such a case because it upheld the regulation at issue against a Second Amendment challenge.
35. In saying this, I do not mean to assert that the Heller dissenters could not responsibly take the position that the Fourteenth Amendment incorporated the Second, but only as they would have interpreted it - that is, as protecting a right associated with membership in an organized militia.
36. I have in mind someone inspired by former Watergate conspirator Charles Colson's example. I should note, though, that the argument for the unconstitutionality of the gun possession ban as applied to such a person rests either on a form of standard-of-review analysis more finely grained than is usual, or on insisting that the historically rooted idea that felons were not virtuous citizens connected lack of virtue with a propensity to violence.
37. Here the example is United States v. Emerson, 270 F.3d 203 (5th Cir. 2001). The idea appears to be that it is permissible to restrict a person's physical movement to the relatively slight degree that domestic violence protection orders do after employing barebones due process requirements, but not permissible to impose more substantial restrictions, especially on specifically enumerated constitutional rights, without more than those minimal protections necessary to satisfy due process alone.
38. See, e.g., News Release, Statement of NRA Executive Vice President Wayne LaPierre on President-elect Obama's Employment Application Form Demanding to Know If Applicants Are "Registered" Gun Owners, (Nov. 13, 2008), http://www.NRAILA.org/News/Read/ NewsReleases.aspx?ID=11813 (stating that the Obama administration has "every intention of" putting together an administration that is hostile to firearms ownership and to Second Amendment rights.... This is more proof that this administration is coming after our freedom and NRA stands ready").
39. For a discussion of a Canadian licensing test, see TUSHNET, supra note 9, at 110-11.
40. It would be rhetorically awkward to simultaneously point out that the Second. Amendment guaranteed an individual right to own handguns for self-defense in the home and that that right rested on a Supreme Court decision that might be overruled in the indefinite future.
41. In form, the statute at issue in Heller was a registration requirement, with conditions so stringent that no ordinary citizen could satisfy them. District of Columbia v. Heller, 128 S. Ct. 2783, 2787 & n.1 (2008) (noting that the District of Columbia prohibits registration of handguns with "minor exceptions").
42. I doubt that legislatures or city councils will try to adopt complete bans after Heller, but there are some already on the books that would clearly fail were the Second Amendment as interpreted in Heller to be incorporated into the Fourteenth. More likely, legislative bodies inclined toward stringent regulation will impose requirements that could reasonably be challenged as the functional equivalents of complete bans.
43. An originalist approach to registration and licensing requirements is, I think, almost certainly likely to be rejected. On the one hand, direct historical analogues to contemporary licensing schemes are somewhere between rare and nonexistent. That would suggest that all such schemes are unconstitutional, a conclusion that I doubt any but the boldest lower court judges would reach. On the other hand, registration and licensing schemes are more finely tuned in identifying individuals whose ownership of weapons might not threaten important public goals any more than do the categorical exclusions the Court described as presumptively constitutional. That would suggest that such schemes should be presumptively constitutional, depending on their stringency.
44. Imagine a judge unfamiliar with handguns attempting to determine the difficulty of a performance test by going to a shooting range.
45. An inclination to focus on face rather than construct validity might be reinforced by the inevitable factual controversies that will break out over whether, and the degree to which, a requirement does indeed have construct validity.
46. See Heller, 128 S. Q. at 2821-22 (2008) ("In sum, we hold that the District's... prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense [violates the Second Amendment].") (emphasis added).
47. Id. at 2818.
48. The degree to which they make it harder will depend on precisely what the requirement is, and will certainly be contested in litigation challenging safe-storage requirements.
49. Heller, 128 S. Ct. at 2820.
50. Arguing for the City in Heller, Walter Dellinger asserted that it took him three seconds to disable trigger locks that the city required on long guns such as rifles and shotguns. Transcript of Oral Argument at 79, District of Columbia v. Heller, 128 S. Ct. 2783 (2008) (No. 07-290).
51. I put aside the well-known difficulties of defining the banned weapons in ways that are not amenable to ready evasion.
52. Heller, 128 S. Ct. at 2817 (quoting WILLIAM BLACKSTONE, 4 COMMENTARIES *148).
53. Perhaps the increase in dangerousness, so defined, is not large enough to make the weapons dangerous in the Heller Court's eyes. My personal view is that some of the Justices in the Heller majority had no real idea about how to define the category of dangerous and unusual weapons except that it included machine guns.
54. Heller, 128 S. Ct. at 2818.
55. Id. at 2815 (quoting United States v. Miller, 307 U.S. 174, 179 (1939)).
56. Id. at 2818.
57. Cf. Id. at 2869 (Breyer, J., dissenting) ("On the majority's reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so.").
58. NAT'L RIFLE ASS'N INST, FOR LEGISLATIVE ACTION, SEMI-AUTOMATIC FIREARMS AND THE "ASSAULT WEAPON" ISSUE (Sept. 3, 2008), http://www.NRAILA.org/ Issues/FactSheets/ Read.aspx?id=238.
59. See supra note 11 (expressing skepticism about the usefulness to lower courts of information generated by partisans).
60. For a discussion of categorical balancing in the Second Amendment context, see Mark Tushnet, Heller and the Perils of Compranise, 13 LEWIS & CLARK L. REV. (forthcoming 2009, on file with author).
61. Heller, 128 S. Ct. at 2821.
62. United States v. Lopez, 514 U.S. 549, 566 (1995).
63. Id. at 615 (Souter, J., dissenting).
64. In referring to substantive Second Amendment challenges, I mean to put to one side the incorporation issue.
65. If I am right, each of those components - handguns, home, self-defense purposes - will be strictly construed as well.