In Part One of this two-part series, we set the stage for a deeper analysis of the various questions that the lower courts and the Supreme Court will be required to take up in the coming years, now that the Supreme Court has recognized a Second Amendment individual right to keep and bear arms. In this column, Part Two of the series, we discuss a recent, prominent opinion by the United States Courts of Appeals for the Ninth Circuit that illustrates just how confusing and complex things are in this area of law.
Nordyke v. King: The Majority View
In Nordyke v. King, Judge O’Scannlain wrote the majority opinion for the Ninth Circuit upholding a county ordinance prohibiting the possession of firearms on county property. The challengers had argued that the ordinance unconstitutionally prevented them from holding gun shows on county property.
The court began by rejecting the argument that all laws burdening gun possession must receive strict scrutiny review—the highest possible level of review. After examining cases involving abortion, content-neutral speech regulations, election laws and the right to marry, the court concluded that only those laws that substantially burden the right to possess firearms for self-defense purposes would receive heightened scrutiny. The court did not reach the question of what standard of review should apply to laws that pass this threshold, because plaintiffs’ claim did not satisfy this requirement.
In this context, Judge O’Scannlain considered whether the challenged law left open reasonable alternative means for individuals to exercise their right to keep and bear arms. Clearly, he said, restricting opportunities to purchase firearms at gun shows on county land did not interfere with numerous other available venues for obtaining firearms, even if these other avenues involved some increased cost or inconvenience to some would-be purchasers.
Judge Gould’s Concurrence
Judge Gould concurred with the majority’s bottom line but strongly disputed its reasoning. Using free speech doctrine as his guide, he argued that gun control laws should be subject to heightened scrutiny only when they are directed at restricting the core purposes of the Second Amendment, which include possessing firearms for the defense of one’s home, and for “resistance of tyrannous government and protection of country.”
All other gun regulations, he argued, should be reviewed under a mid-level, but deferential, reasonableness standard of review, somewhat akin to that used to evaluate content-neutral, time, place, and manner speech regulations. To Judge Gould, the substantiality of the burden on the right was entirely irrelevant to the standard of review to be applied.
These competing opinions also clashed on the meaning of the non-exhaustive list of longstanding, presumptively constitutional gun control regulations detailed in Heller (and discussed in our first column in this series.) Judge O’Scannlain maintained that the Supreme Court intended this list merely to describe laws that it presumed would survive the appropriate level of constitutional scrutiny—whatever that standard might be.
By contrast, Gould maintained that the list demonstrated that many gun control regulations should be subject to deferential review. He argued that the very existence of the Court’s list is inconsistent with O’Scannlain’s contention that laws substantially burdening the right to possess firearms for self-defense purposes must receive some form of heightened scrutiny. Surely, a law prohibiting felons from possessing firearms substantially burdened their right to keep and use guns to defend themselves, and yet the Court in Heller stated that laws banning felons from possessing firearms are presumptively constitutional. Under O’Scannlain’s analysis, such laws would be presumptively unconstitutional because they substantially burden the right to self-defense and must be justified under rigorous review.
The Ninth Circuit has decided to review the Nordyke decision en banc. We endorse this en banc review—as we find that there are some serious unanswered questions in both the O’Scannlain and Gould approaches. And, we hope that the Ninth Circuit appreciates the limits of both the O’Scannlain and Gould frameworks when it resolves the case en banc.
Judge O’Scannlain’s Approach, and the Problems It Raises
Judge O’Scannlain purports to develop his substantial burden/heightened scrutiny analysis by analogizing Second Amendment doctrine to the way in which courts review restrictions on other rights, such as the right to abortion, free speech, voting and political association, and marriage. The problem is that there is no common denominator reconciling legal doctrine that has been developed in these diverse areas.
The Court’s right to marry cases track O’Scannlain’s analysis best. Under these holdings, insubstantial burdens on the right are upheld under rational basis review, and substantial burdens receive strict scrutiny. The other rights O’Scannlain discusses are much more of a mixed bag, however.
The undue burden standard applied to abortion restrictions seems sui generis, in that it completely controls the constitutionality of such laws. A law unduly burdening the right to have an abortion is deemed unconstitutional without any need for the court to apply any additional standard of review.
Electoral regulations are subject to diverse doctrinal rules. Even before the adoption of the 24th Amendment, even an insubstantial tax on voting received strict scrutiny. Insubstantial ballot access requirements receive intermediate level scrutiny, while more substantial burdens are strictly scrutinized.
Content-neutral speech regulations receive intermediate level scrutiny whether or not they are substantially burdensome. The only predicate for such review is that the challenged law regulates speech as such. Nor does the availability of alternative avenues of communication require the upholding of all time, place and manner regulations. The presence of alternative avenues is only one of the criteria courts consider in deciding whether to uphold a law. A law that burdens substantially more speech than is necessary to further an unimportant state interest is unconstitutional whether or not the speaker has alternative avenues available to him.
If free speech doctrine tracked Judge O’Scannlain’s approach, a law prohibiting leafleting in a small public park in order to reduce littering would be easily upheld as constitutional, as long as there were many other parks and streets available to speakers who were distributing leaflets to the public. But we think that such a law would be struck down under longstanding precedent.
We understand and appreciate why courts might attempt to analogize Second Amendment rights to other examples of fundamental rights doctrine. But the diversity of rights doctrine here cannot be ignored. Analogies, to be helpful, need to be precise. And the decision to analogize the right to keep and bear arms to one right, as opposed to others, has to be justified.
Judge Gould’s Approach, and the Issues It Raises
Judge Gould’s analysis, in turn, raises its own problems. The multiple purposes he identifies as the core objectives of the Second Amendment, including resistance to tyranny, seem strikingly inconsistent with Heller’s refusal (discussed in Part One) to assign any operative meaning to the militia language in the first clause of the Amendment.
Moreover, Judge Gould’s approach relies heavily on analogies to free speech doctrine. And it is on this basis that he rejects the idea that the substantiality of the burden should serve in any way as a threshold to heightened review. Judge Gould explains, correctly, we think, for free speech purposes, that we do not increase the level of scrutiny applied to content-neutral laws when they burden more speech. But we do apply a higher level of (strict) scrutiny to a different kind of law—content discriminatory laws—not because they create bigger burdens on people, but because they go more to the core of what the free speech clause prevents: distortion of the marketplace of ideas by the restriction of certain messages or the favoring of others.
But it is not clear to us that the First Amendment provides a particularly useful analogy for the development of Second Amendment doctrine. Most importantly, freedom of speech has a broader scope and more complex nature than Second Amendment rights.
Freed speech doctrine has both a liberty and an equality dimension. The First Amendment is concerned not only about the liberty to speak, but also (if not more so) with preventing government from imposing unequal burdens on different speakers. When courts review the regulation of rights with an equality dimension, like speech or voting rights, they are more likely to impose heightened scrutiny on relatively minor burdens—not because the liberty to exercise the right is unacceptably impaired, but because even minor burdens can create unacceptable comparative advantages. The right set forth in the Second Amendment, in contrast, seems to us to be essentially a liberty right with far less of an equality dimension. Accordingly, there is less reason, here, to be concerned about minor burdens on the right to keep and bear arms.
Moreover, freedom of speech serves both instrumental and dignitary interests. We protect speech because it is a necessary precondition to democratic self-government. But we protect a great deal of low-value speech as well, because we recognize the autonomy right to authentic self-expression. A right that is grounded both in utility and autonomy may require rigorous protection even when the exercise of the right is futile or useless. The Second Amendment, in contrast, appears to serve instrumental goals alone. Carrying and discharging weapons may serve critical self-defense and/or national protection goals, but doing so is not recognized as a core aspect of personal identity. Thus, the scope of the Second Amendment can rightfully be defined in more utilitarian terms than the scope of the First Amendment.
Heller II: The Judges Take Different Approaches Altogether
Ninth Circuit judges are hardly alone in struggling, through no fault of their own, to make sense of the Supreme Court’s 2008 Heller opinion. Similar diversity of views and questionable analysis is demonstrated, for instance, by another Second Amendment case, Heller v. District of Columbia, which was recently decided by the D.C. Circuit. (To avoid confusion with the Supreme Court’s earlier decision, we will refer to the more recent D.C. Circuit case as Heller II).
In Heller II, the court evaluated challenges to complex gun registration requirements that include identification, fingerprinting and photographing of the registrant; ballistic identification of the firearm; a 30-day interim period between handgun registrations; and renewal of registration after 3 years. Applicants had to also pass a vision test, demonstrate knowledge of firearms regulations, undergo a background check, and attend a firearms and training course. Also challenged were bans on certain semi-automatic firearms identified as “assault weapons” and on magazines holding more than ten rounds of ammunition.
Judge Douglas Ginsburg’s majority opinion rejected some of these challenges and remanded others for further evidentiary proceedings. He also analogized the Second Amendment to free speech law, but offered a very different framework for reviewing gun regulations than the Ninth Circuit judges had invoked in Nordyke. To Ginsburg, any gun control law that has more than a de minimis effect on the right to keep and bear arms must receive meaningful intermediate level scrutiny review—even if the law was listed as a longstanding and presumptively constitutional regulation by the Supreme Court in Heller.
If the controlling predicate to applying intermediate level scrutiny is simply whether a law imposes more than a de minimis burden on the Second Amendment right, however, it becomes difficult to understand the relevance of the longstanding nature of the limits on the Second Amendment that Heller describes. Longstanding gun regulations that are as burdensome as much more recent regulations should, under Judge Ginsburg’s reasoning, receive the same standard of review as their newer counterparts. And yet this seems inconsistent with the (limited) guidance Heller offers.
Judge Kavanaugh dissented in Heller II. He argued that gun control regulations should be evaluated solely in terms of history and tradition. No conventional standard of review, he reasoned, should be applied in Second Amendment cases. If a gun regulation is sufficiently longstanding and rooted in history, it is constitutional. If that history is lacking, the regulation is unconstitutional. If the courts are confronted with new weapons or conditions that necessarily could not have been addressed historically, they should reason by analogy from history and tradition in evaluating the regulations at issue.
To Judge Kavanaugh, when the Supreme Court eschewed interest- balancing in Heller, it was, in essence rejecting the application of any conventional measure of infringement and standard of review under the Second Amendment. From this perspective, the Second Amendment would be unique and distinguishable from all other fundamental rights outside of the criminal procedures provisions in the Bill of Rights.
This approach would also be extraordinarily difficult to apply until the Supreme Court provides the background that it explicitly refused to discuss in Heller—some historical foundation, analysis or criteria that courts could employ to determine when a gun regulation was sufficiently longstanding and widespread to withstand Second Amendment review.
So there you have it: Four distinct views of what the Second Amendment means, in only two of the many Second Amendment cases that have been decided since Heller. We understand, of course, that the Supreme Court cannot decide all of the issues that may arise in a single case or two when it strikes out in a new constitutional direction, as it did in interpreting the Second Amendment. But the lack of guidance, especially in light of the tensions within the Heller analysis itself, is understandably frustrating for litigants, courts and analysts.