Judge Brett Kavanaugh has written exactly one opinion, a dissent, dealing with the Second Amendment. Senators should question him carefully, albeit respectfully, about it. It is not a mainstream opinion. It proposes an interpretation of Second Amendment rights that is both unorthodox and also inadequate to deal with the issues our country confronts today and in the future.
The opinion issued in the case of Heller v. District of Columbia involved challenges to the District of Columbia’s gun registration requirements and its ban on semi-automatic assault weapons. Judge Kavanaugh concluded that both regulations were unconstitutional.
How Should Courts Review Second Amendment Challenges To Gun Regulations?
A foundational issue in the case was the methodology courts should employ in reviewing gun regulations alleged to violate the Second Amendment. As a court of appeals judge, Judge Kavanaugh was required to construe and apply Justice Antonin Scalia’s 2008 majority opinion in District of Columbia v. Heller (a different case involving the same two parties), the Supreme Court decision construing the Second Amendment to protect the right to keep and bear arms for self-defense purposes. (To avoid confusion, throughout this article I will refer to the Supreme Court’s 2008 decision as “Heller,” and Judge Kavanaugh’s 2011 opinion as “Judge Kavanaugh’s opinion.”)
To be fair to Judge Kavanaugh, Justice Scalia’s opinion in Heller was hardly a model of clarity. But it could be interpreted in a way that locates Second Amendment rights within the conventional framework of fundamental rights jurisprudence. This is the framework courts utilize to adjudicate cases involving freedom of speech rights, freedom of association rights, religious liberty rights, the right to marry, the right to the equal protection of the laws and other rights characterized as fundamental in our constitutional system. Indeed, this is the way that most federal judges have interpreted Heller.
Under this framework, courts first determine the scope of the right. In Heller Justice Scalia looked to history to determine that the Second Amendment guarantees to Americans the right to keep and bear arms for self-defense purposes. Justice Scalia also noted that there are long-recognized limits to whom and what the Second Amendment protects. Uniquely “dangerous and unusual” weapons fall outside the scope of the right. Further, the state may prohibit felons and the mentally ill from possessing firearms and it may prohibit the carrying of concealed weapons or the carrying of weapons into government buildings or sensitive locations.
Judge Kavanaugh’s opinion followed this approach in determining the scope of the Second Amendment. Where he ventured into more uncharted and difficult constitutional terrain involved the next step in a fundamental rights analysis. Once the scope of the right is determined and government action is held to have infringed the exercise of the right, courts will then evaluate the government’s justification for abridging the right.
No right is absolute. All rights can be over-ridden in appropriate circumstances. But the government bears the heavy burden of justifying an abridgement of a right. Conventionally, courts critically examine the government’s justification under some specific standard of review. The standard of review varies by right and context. In the great majority of cases, however, courts apply either strict- or intermediate-level scrutiny to test the government’s justification for infringing a right. Because courts are just beginning to develop Second Amendment doctrine with only two Supreme Court cases available as precedent to guide them, it is hardly surprising that judges may disagree as to the standard of review to apply in the case before them.
Judge Kavanaugh, however, argued that no standard of review should be applied to test the government’s justification for restricting the right to keep and bear arms. If the right is infringed, the infringement can never be justified, no matter how compelling the government’s justification for its actions may be. Judge Kavanaugh argued that if the government’s action burdens conduct falling within the scope of the Second Amendment right and is not covered by one of the exceptions identified by history and tradition, there is nothing more to say. The law at issue is unconstitutional, period.
Under this analysis, the sole job of the courts in adjudicating a Second Amendment claim is to look at the history and traditions surrounding the right to keep and bear arms and determine whether the claimant’s conduct falls within the scope of the right and outside of any of the long standing recognized exceptions to its exercise. Often this will require reasoning by analogy. Thus, courts should consider weapons traditionally deemed too unusual and dangerous to be protected against regulation in deciding whether individuals today can assert a right to keep and bear modern semi-automatic rifles. Similarly, courts might look to the kinds of places where the carrying of firearms could be traditionally prohibited to determine whether they might be barred today from casinos or colleges.
To put it mildly, this is an unorthodox position. Most judges do not read Justice Scalia’s opinion in Heller as precluding the application of any standard of review in Second Amendment cases. Further, Judge Kavanaugh’s interpretation of the Second Amendment is flatly inconsistent with the methodology applied to virtually all other fundamental rights. No judge or scholar today would argue than any law abridging freedom of speech, for example, is unconstitutional without regard to whether the government could justify the law under the appropriate standard of review.
What explains Judge Kavanaugh’s understanding of the Second Amendment? First, Judge Kavanaugh contends that Justice Scalia rejected the employment of standards of review in Second Amendment cases when he argued at length against Justice Stephen Breyer’s dissenting suggestion that gun control regulations should be evaluated under a generic balancing test. As Justice Scalia put it, any necessary balancing of public needs against private rights was settled by the language of the Constitution and long-standing traditions relating to the keeping and bearing arms for self-defense purposes. No further balancing by courts is permissible. From Judge Kavanaugh’s perspective, any conventional standard of review intrinsically involves some balancing and, accordingly, its use is precluded by Justice Scalia’s language in Heller.
Second, Judge Kavanaugh clearly believes that Second Amendment doctrine limited to reasoning by analogy from the original understanding and long-standing traditions, and denying the government any opportunity to justify its actions even under rigorous review, is a feasible framework for adjudicating cases. It will work. It makes sense to adopt this interpretation of the Second Amendment.
I think Justice Kavanaugh is correct that conventional standards of review such as strict- or intermediate-level scrutiny involve some balancing. However, I would agree with most judges that this kind of limited and structured balancing is not precluded by the anti-balancing language in Heller. What Justice Scalia objected to was the kind of free-wheeling ad hoc proportionality test advocated by Justice Breyer in his dissent, not the application of conventional standards of review.
Standards of Review Withstand Changes in Society and Technology
More importantly, the exclusive reasoning by analogy methodology Judge Kavanaugh endorses is not a feasible framework for adjudicating Second Amendment cases. It will not work. The problem is not simply that Judge Kavanaugh chooses an outlier interpretation of the Heller opinion and the Second Amendment. It is that his approach, with all due respect, makes very little sense.
The problems with Judge Kavanaugh’s reasoning by analogy methodology should be self-evident. Historical analogies are particularly difficult to employ effectively when the possible exercises of the right change dramatically over time. Yet few rights involve such unprecedented changes in technology as the right to keep and bear arms. Any casual reading of a newspaper or magazine today makes this point abundantly clear. What are the appropriate historical analogies to 3D printable guns or firearms which can be programmed so that they can only be fired by a person with the fingerprints of the owner? When the nature of the weapons claimed to fall within the parameters of the right, and the technological means of making weapons less dangerous to innocent third parties while minimizing the interference with the use of firearms for self-defense purposes will differ so profoundly from past history, analogies become increasingly difficult to justify. They reflect extremely subjective assumptions that are of dubious persuasive force.
To be sure, technology has also complicated the jurisprudence of other rights. Freedom of speech isn’t limited today to distributing leaflets or making speeches on soapboxes. Social media and the internet often create difficult issues for courts. And courts will employ analogies as a first step to reconciling new methods of communication with older case law. But these analogies are only the first step in the adjudication of free speech cases. Court will also and always move forward from analogies to the application of a standard of review. Under Judge Kavanaugh’s analysis, reasoning by analogy begins and ends the judicial inquiry.
There are critical reasons why constitutional doctrine protecting fundamental rights relies so heavily on the application of various standards of review. Courts recognize that the reasons the state may need to regulate the exercise of rights cannot be predicted with accuracy over time. The application of standards of review gives government the opportunity to justify imposing some burden on protected freedoms based on contemporary concerns. Courts still take rights very seriously when they apply standards of review. It would be absurd to argue that courts do not take freedom of speech and association, religious freedom, the right to marry, and the right to the equal protection of the laws seriously. Rather, the employment of standards of review reflects the recognition that the right deserves to be defined broadly, but doing so necessarily results in potential conflicts between the exercise of the right and important state interests. Standards of review are essential tools for resolving the inevitable challenges that arise when courts take rights seriously but recognize that they are not absolute.
At a minimum, given his rejection of standards of review, Judge Kavanaugh has to answer this question: If a firearms regulation is necessary to the furtherance of a compelling state interest and there is no persuasive analogy between the challenged regulation and traditionally recognized limits on the right to keep and bear arms, is it a fair inference from his opinion that such a regulation must be struck down? And if that is his answer, why is it that a government interest of sufficient weight to justify content discriminatory regulations of speech, substantial burdens on the free exercise of religion, or discrimination on the basis of race or gender is not adequate to justify restrictions on the right to keep and bear arms?
Balancing of Government Interests and Individual Rights is Unavoidable
There is a second basic fallacy in Judge Kavanaugh’s contention that contemporary courts can never balance the state’s interest in public safety against the individual’s right to keep and bear arms. The Second Amendment only recognizes whatever balancing was reflected in historical limitations on the scope of the right and the exceptions to its exercise. This is the foundation for Judge Kavanaugh’s rejection of the application of standards of review in Second Amendment cases.
Again, with due respect, this analysis makes no sense. To begin with, it is difficult to understand why the political community that adopted the Second Amendment was entitled to balance the right against competing state interests, but later generations are denied comparable opportunities to engage in similar balancing. If the history of the Second Amendment demonstrates anything, it is that some balancing of government interests and individual rights was understood to be a necessary qualification for the protection of the right. Why isn’t the need for balancing the lesson courts should learn from this history rather than a rigid commitment to the specific balancing undertaken at a single point in time?
Moreover, important disputes about the right to keep and bear arms simply cannot be coherently resolved unless courts engage in balancing. Two examples should demonstrate this point.
1. Basic Tort Law Requires Balancing
First, every day in our country children are unintentionally or deliberately killed or injured by the use of a firearm by a sibling or playmate who obtained access to his or her parents’ gun without their permission. In all of these cases, it may be asked whether children were able to obtain access to guns and shoot other children because the adult owners of the firearms stored them negligently.
A few states have statutes imposing criminal penalties on adults who negligently store firearms where children can reach and use them. But all states impose civil liability for negligence that results in injuries to third parties. This is basic tort law. There are numerous cases where the victims of negligently stored firearms sued the owners of the guns that were used by children to injure or kill innocent people.
But how can a court or a jury determine whether the owners of firearms were negligent in storing guns in their home? A variety of factors need to be taken into account in answering that question, including the likelihood that children would be in the house, the age and experience of the children, the kind of gun involved in the shooting, and the extent to which storing the firearm in a place inaccessible to children would make the gun less available for self-defense purposes. How are these factors and others to be considered to reach a conclusion about the owner’s alleged negligence?
The answer is not seriously in dispute. Negligence law requires individuals to act reasonably given the totality of the circumstances. Determining whether the defendant has acted reasonably requires courts and juries to engage in the balancing of costs and benefits. On one side of the balance courts and juries consider the cost of safety, the out of pocket expenses of an additional safety precaution such as a gun storage locker, and the extent to which safety precautions interfere with an activity’s utility, here the accessibility of the firearm for self-defense purposes. On the other side of the scale, courts and juries weigh the likelihood that an accident causing injury to third parties will occur and the magnitude of the resulting injury. Given the way the gun was stored at the time of the accident, how likely was it that a child would be able to obtain access to the firearm and cause serious injury to some other child or adult. This is the universal understanding of negligence. It is defined by and grounded in balancing.
Here again, one might ask Judge Kavanaugh whether it is a fair inference from his opinion that it would violate the Second Amendment to hold gun owners civilly liable for the negligent storage of their firearms because the Second Amendment prohibits courts from engaging in the kind of balancing that negligence law requires. Without balancing, however, how are questions about the storing of firearms to be resolved. Can states hold gun owners strictly liable for any accidents resulting from their storage of firearms. This burden on the right to keep and bear arms, however, is not recognized as an accepted exception to Second Amendment rights in the Heller opinion. Alternatively, perhaps Judge Kavanaugh believes that it is unconstitutional to impose any liability on the owner of firearms based on the way they store their guns, no matter how easy it is for children to obtain access to loaded guns. Certainly, he deserves an opportunity to provide the Senate his answers to these questions.
2. The Second Amendment Impliedly Includes the Right to Use Firearms for Self-Defense
The second example involves the elephant in the room question that no one talks about in Second Amendment debates. That is, whether the Second Amendment guarantees not only the right to keep and bear arms for self-defense purposes, but also the right to use firearms for self-defense purposes. Surely, one can argue it is implausible to read the Second Amendment to protect the former right while allowing the government to prohibit individuals from ever using their firearms for self-defense purposes. The Second Amendment right to keep guns for self-defense purposes must extend to the right to use guns for self-defense purposes. But just how far does the right extend?
Persons who use firearms to injure or kill another person may be subject to both civil (tort) and criminal liability. In either case, defendants may attempt to avoid liability by arguing that they acted in self-defense. Once again, we must ask how courts or juries are to evaluate defendant’s self-defense claim. The answer is that to successfully claim self-defense to avoid both tort and criminal liability, the defendant must act reasonably. He must reasonably perceive he is in danger of serious harm from an adversary and the amount of force he uses must be reasonable in the circumstances. This standard requires ad hoc balancing, the very kind of balancing that Judge Kavanaugh reads the Heller opinion to prohibit.
Accordingly, senators should ask Judge Kavanaugh whether a fair inference from his Second Amendment opinion is that attempts to avoid tort or criminal liability by asserting self-defense cannot be evaluated by examining the reasonableness of the defendant’s conduct in the circumstances. If that is his answer, one might ask as a follow up question: exactly how does Judge Kavanaugh think courts and juries can evaluate self-defense claims if they are not permitted to examine the reasonableness of the defendant’s conduct? If Judge Kavanaugh is committed to a Second Amendment jurisprudence that precludes any balancing of individual rights against the public interest, he has a lot of questions he needs to answer.