Is Heller Hollow?

America's 1st Freedom

Nov. 2011

By Dave Kopel

Does the Second Amendment protect anything other than a handgun in the home? When anti-gun laws are challenged in court, should judges uphold repressive ordinances like the District of Columbia’s gun licensing scheme, which forces applicants to spend hundreds of dollars and dozens of hours just to buy an ordinary rifle? These are the questions being fought in the courts right now, in cases backed by the NRA. What answers the courts will provide are far from certain. The ultimate answers will depend on whether or not the next generation of federal judges is appointed by a President who values the Second Amendment.

When considering the constitutionality of any law, judges use a variety of doctrinal tools. What tools they choose will often determine the result of a case. So let’s take a look at the constitutional toolbox.

When faced with a constitutional case, the first question a judge has to decide is whether the conduct at issue is part of a constitutional right. For example, the First Amendment declares that “Congress shall make no law … abridging the freedom of speech, or of the press.” Does that mean that Congress can pass no laws about anything a person might say?

Not at all. Suppose some people formulate a conspiracy to rob a U.S. Postal Service truck. They create the conspiracy by talking with each other—by engaging in speech. They are caught, and criminally prosecuted for violating a federal statute which punishes conspiracies to interfere with the U.S. mail. If the conspirators tried to raise a First Amendment defense, they would lose.

The court would explain that even though the conspiracy involved saying words out loud (“speech”), the First Amendment does not protect everything that a person says. Rather, the Amendment protects “the freedom of speech,” and conspiracies to commit violent crimes are not part of “the freedom of speech.”

In a Second Amendment case, the judge must likewise decide whether the conduct even involves the Second Amendment right. A few cases are easy: possessing a handgun in the home for self-defense is part of the Second Amendment, because that was the particular conduct as issue in District of Columbia v. Heller, and the Supreme Court ruled 5-4 that Mr. Heller did have a Second Amendment right to own a handgun for self-defense.

Conversely, if a person wanted to own his own battle tank and corresponding live ammunition, a court would certainly rule that the person has no Second Amendment right to do so. The Second Amendment’s language of “keep and bear arms” implies that the Amendment protects weapons that a person can “bear” or carry. A tank bears the user, and not vice versa, so tank ownership is not part of the Second Amendment.

Now for the harder cases: What is a person wants to possess a rifle or shotgun for home defense? What about carrying a handgun outside the home for protection? What if the person wants a gun for something other than home defense—such as target shooting, hunting, or collecting? What about air guns? Knives, swords, or bows? Electronic devices such as Tasers? Chemical self-defense sprays? Are any or all of these within the scope of the Second Amendment?

There is much language in the Supreme Court decisions in Heller (2008) and McDonald v. Chicago (2010) that suggests that the answer to all these questions is “yes.” However, the Supreme Court has not ruled on a case directly presenting such issues.

Thus, some lower courts, or other government entities, now acknowledge a Second Amendment right that only goes as far as the precise issues in Heller and McDonald (handguns for home defense) and not one inch further. For example, some courts have refused to accept any right to carry outside the home.

Once an activity is acknowledged as being within the scope of a constitutional right, does that mean that any restrictions on the right are unconstitutional? Definitely not. Courts use several tests, or “standards of review,” to determine if something violates a right. Which test depends on the particular right, and on how close something is to the core of that right.

Artistic expression is considered part of the core of the First Amendment. Suppose a city council outlawed any performance of Shakespeare’s Romeo and Juliet. The city council said that the ban is needed because the play involves teenage suicide, and the council is worried that the play might inspire copycat suicides by the audience.

Because the ban is a content-based restriction on speech, the court would apply the standard  of “strict scrutiny.” To pass strict scrutiny, a law must involve a “compelling state interest,” and must be “necessary” to that interest. “Necessary” means that the law is “narrowly tailored” and there is no “less restrictive alternative.”

A court would likely conclude that preventing teenage suicide is certainly a “compelling state interest.” In the context of gun control laws, the prevention of homicides and other violent crimes  would be a compelling state interest.

But the Romeo and Juliet ban would not be “necessary.” The law prohibits anyone, not just at-risk teenagers, from seeing the play, so the ban is not “narrowly tailored.” Further, the ban is not the “least restrictive alternative.” Instead of forbidding the play, the city council could provide funding for suicide prevention programs, could distribute anti-suicide pamphlets, and so on.

Not all First Amendment restrictions get strict scrutiny. Commercial speech receives less protection than political, artistic, or scientific speech. So a restriction on product advertising would be subject to “intermediate scrutiny”: does the law protect an “important” government interest, and is there a “substantial” relationship between the law and the interest? For intermediate scrutiny, there is no requirement for narrow tailoring or less restrictive alternative.

As for laws for which no constitutional right is involved (e.g., conspiracy to rob mail trucks), there is the lowest standard of review: “rational basis.” The law must support a “legitimate” government interest, and the law must have a “rational” relation to that interest. Almost any law can pass the rational basis test.

Before Heller, many courts upheld all gun laws because they believed that ordinary citizens had no Second Amendment rights, and so a gun ban, or other harsh restriction, was proper because legislators could have had a “rational” belief that preventing ordinary citizens from having guns would reduce gun misuse.

For all the three major standards of review (strict scrutiny, intermediate scrutiny, and rational basis), there are variants, special situations, and so on, but we’ll skip over those. In practice, the intermediate scrutiny is the standard which gives the judge the most discretion in deciding a case.

Notably, the Heller Clourt did not formally announce a standard of review for Second Amendment cases, so lower courts have been figuring out the standard by drawing implications from Heller. Judges have taken very different approaches.

In Heller II, the NRA filed suit against D.C.’s post-Heller gun licensing laws, which are the most cumbersome in the United States. The Heller II suit also challenged D.C.’s ban on magazines holding more than 10 rounds, and on so-called “assault weapons”—a ban which outlaws hundreds of ordinary firearms.

Federal district judge Ricardo Urbina upheld all the restrictions. He said that strict scrutiny did not apply to anything involving the Second Amendment. Intermediate scrutiny applied only for something related to armed defense of the home. Because D.C.’s intensely bureaucratic gun registration system limited the acquisition of firearms for home defense, intermediate scrutiny came into play. Judge Urbina ruled that the laws passed intermediate scrutiny, since the D.C. city council had relied on evidence from the Brady Campaign that restrictive laws reduced gun crime.

As for so-called “assault weapons” and magazines holding more than 10 rounds, there was no constitutional protection at all. The case is currently on appeal to the federal Circuit Court of Appeals for the District of Columbia.

An entirely different approach was taken by the Seventh Circuit Court of Appeals, which hears federal appeals from Illinois, Indiana, and Wisconsin. After losing the McDonald case, the Chicago city council enacted a gun licensing law which required anyone who wished to own a gun to receive training at a target range. And then the city council prohibited the operation of any target range within city limits.

In Ezell v. Chicago, the Seventh Circuit ordered a preliminary injunction to stop enforcement of the range ban. The court decided that because home defense is the “core” of the Second Amendment right, training for home defense must be fairly close to the core. Thus, the standard of review for the range ban was almost what the court called “not quite” strict scrutiny. According to the Seventh circuit, “The City must establish a close fit between the range ban and the actual public interests it serves, and also that the public’s interests are strong enough to justify so substantial an encumbrance on individual Second Amendment rights.”

The ban on target ranges failed the not-quite strict scrutiny test. As justification for the ban, the Chicago lawyers said that places near where many gun owners congregated might be targets for robbery. Yet the city presented not a shred of evidence to substantiate its supposed fear.

The Chicago government also claimed to be worried about accidental injuries at ranges, but the court cited the NRA Range Source Book to show that were ways to prevent accidents without banning ranges. Likewise, Chicago’s lawyers fretted that a business might set up a mobile target range inside a truck. The truck might not have sufficient handwashing facilities, so there could be a risk of lead contamination for range users.

The Seventh Circuit recognized that Chicago’s purported reasons for the ban were obviously pretextual, and served no public interest.

If other courts adopt the Ezell standards, then judicial protection of the Second Amendment will be fairly robust. If they follow the Heller II standards, then the Second Amendment will offer little practical protection, except against handgun bans in the home.

While the tripartite standards of review (strict/intermediate/rational) take care of many cases, there are some other standards of review. In the 1992 case Planned Parenthood v. Casey, the Supreme Court created a special standard for abortion. According to Planned Parenthood, there is no abortion right after fetal viability. Pre-viability, the standard is whether the restriction is an “undue burden.” An “undue burden” means “a substantial obstacle in the path of” exercise of the right. That a law has the “effect of increasing the cost or decreasing the availability” does not necessarily mean that the law is an “undue burden.”

The federal Ninth Circuit Court of Appeals encompasses the nine far-western states. The long-running Nordyke v. King case challenges the ban on gun shows on the county property of Alameda, California. In the latest iteration of Nordyke, the Ninth Circuit adopted a variant of the undue burden test. Under Nordyke, only laws which posed a “substantial burden” on Second Amendment rights would receive a close look from the judiciary. The gun show ban was not a “substantial burden,” because even though it made buying guns more expensive, there were alternative places to buy guns, and so the county’s ban did not prevent people from obtaining guns for self-defense.

Historically, two other standards for right to arms cases have been important for state courts interpreting state constitutions. These two could be used by courts analyzing the Second Amendment.

The “frustration” test asks whether a law “frustrates” the exercise of the right to keep and bear arms, or “perfects” the exercise of the right. The classic 19^th century application of the test was to uphold bans on concealed carry. Courts reasoned that a ban on defensive carry would “frustrate” the right to keep and bear arms. However, a law which allowed open carry but banned concealed carry would “perfect” the manner of exercising the right.

Especially in the latter part of the 20^th century, many state courts used a “reasonableness” standard. How courts applied the standard varied tremendously. Some courts used “reasonable” as a basically a synonym for “rational basis,” so that even complete bans on handguns could be upheld—as in the 1984 Illinois Supreme Court’s Kalodimos v. Morton Grove.

Other courts conducted a much more searching inquiry, and struck down laws which did not genuinely and realistically promote public safety, or which “unreasonably” infringed the right to arms.

The Brady Center has been busy urging courts to use “reasonableness” for the Second Amendment. According to the Brady Center, every possible gun control and gun prohibition is “reasonable,” except for what Heller explicitly forbade (banning all handguns in the home).

Serious judicial protection of the Second Amendment right is relatively new. Although state courts have nearly two centuries of experience in protecting state constitution arms rights, many courts have ignored the Second Amendment until recently. Similarly, from 1791 until the 1930s, most courts did almost nothing to protect First Amendment rights.

When courts got serious about the First Amendment in the 1930s, they had to work out many issues of legal doctrine. It took several decades for modern First Amendment doctrine to be clarified and mostly stabilized. A similar process for the Second Amendment is just beginning.

Whether the Second Amendment becomes a robust right, or a merely nominal one, will depend on what kind of judges rule on the cases. The development of Second Amendment doctrine could be killed in its infancy if President Obama can appoint just one more Justice to replace a Justice from the five-Justice Heller majority. Without even needing to overrule Heller, an Obama-dominated Court could declare that Brady “reasonableness” is the rule for all Second Amendment cases. Justice Stephen Breyer has already urged such a similar standard,  which he describes as “interest-balancing.” He fell just one vote short in Heller of a “reasonableness” standard that would have authorized handgun prohibition. In a second Obama term, Breyer/Brady’s unreasonable “reasonableness” could become the law of the land.