I don’t have much that’s original or interesting to say about the historical and jurisprudential arguments made by the majority and the dissent in McDonald v. City of CHicago. But I did want to say a few words about the possible implications of McDonald. Let me begin with the question: How could McDonald affect the way that courts evaluate the constitutionality of gun controls, whether federal, state, or local (beyond the obvious point that there are now federal constitutional constraints and state and local gun laws)?
To begin with, let me repeat what I wrote about before, in my Implementing the Right to Keep and Bear Arms for Self-Defense article: Courts shouldn’t simply ask whether right-to-bear-arms claims should be subject to “strict scrutiny,” “intermediate scrutiny,” an “undue burden” test, or any other unitary test. Rather, as with other constitutional rights, courts should recognize that there are four different categories of justifications for a restriction on the right to bear arms:
- Limited Scope: A restriction might not be covered by the constitutional text, the original meaning of the text, the traditional understanding of the text’s scope, the background legal principles establishing who is entitled to various rights, or the categorical exceptions set forth by binding precedent (such as Heller’s statement that bans on gun possession by felons, bans on concealed carry, and several other kinds of gun controls are constitutional).
- Slight Burden: A restriction might only slightly interfere with rightholders’ ability to get the benefits that the right secures, and thus might be a burden that doesn’t rise to the level of unconstitutionally “infring[ing]” the right.
- Reducing Danger: A restriction might reduce various dangers (in the case of arms possession, chiefly the dangers of crime and injury) so much that the court concludes that even a substantial burden is justified.
- Government as Proprietor: The government might have special power stemming from its authority as proprietor, employer, or subsidizer to control behavior on its property or behavior by recipients of its property.
But this having been said, the “reducing danger” justifications are indeed often evaluated under intermediate or strict scrutiny, and some lower federal courts dealing with Second Amendment challenges after Heller have indeed applied these standards of review. And while McDonald doesn’t purport to discuss what standard of review courts should apply, it might still affect the matter.
A. The incorporation precedents under the Due Process Clause generally hold that the Fourteenth Amendment applies against the states those rights that are “fundamental to our scheme of ordered liberty and system of justice.” The plurality held that the Second Amendment is incorporated by concluding that the right is indeed fundamental; and Justice Thomas’s concurrence also referred to the right as fundamental.
Now as it happens there is also talk in the Court’s precedents that restrictions on rights should be evaluated under strict scrutiny if those rights are fundamental. I don’t think that’s quite right (partly for reasons I explain in my article). But the Court has said this, and as a result some lower courts have concluded that restrictions on the right to bear arms should be evaluated only under intermediate scrutiny, because the right isn’t really fundamental. Here, for instance, is a passage on the subject from Heller v. D.C. (II), 2010 WL 1140875 (D.D.C. Mar. 26), which dealt with D.C.‘s new gun control law:
[T]he Heller [(I)] majority suggested that one of the two “traditionally expressed levels” of heightened scrutiny — intermediate scrutiny and strict scrutiny — should be applied to laws implicating the Second Amendment right. Thus, the court turns to an analysis of whether intermediate scrutiny or strict scrutiny is the most appropriate standard to be used to evaluate restrictions on the exercise of the Second Amendment right.As many courts have recognized, the Supreme Court did not explicitly hold that the Second Amendment right is a fundamental right, despite the fact that it stated that “[b]y the time of the founding, the right to have arms had become fundamental for English subjects” and noted that Blackstone “cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen.” If the Supreme Court had wanted to declare the Second Amendment right a fundamental right, it would have done so explicitly. The court will not infer such a significant holding based only on the Heller majority’s oblique references to the gun ownership rights of eighteenth-century English subjects.
Partly because of this (though also based on other arguments), the court concluded that “intermediate scrutiny is the most appropriate standard of review to apply to the challenged laws.” See also United States v. Yanez-Vasquez, 2010 WL 411112 (D. Kan. Jan. 28) (“The court declines to apply strict scrutiny, since ... Heller did not expressly find firearm possession to be a fundamental right.”); United States v. Jones, 673 F. Supp. 2d 1347 (N.D. Ga. 2009) (though this involved gun possession by a felon, which, according to Heller, is outside the Second Amendment’s scope); United States v. Miller, 604 F. Supp. 2d 1162 (W.D. Tenn. 2009) (same). McDonald’s conclusion that the right is fundamental might change this, and might lead courts to apply strict scrutiny rather than intermediate scrutiny. I’ve argued in my article that the intermediate/strict scrutiny distinction might be less helpful than might appear (and I’ve more broadly argue that intermediate scrutiny and strict scrutiny themselves don’t provide a terribly helpful way of framing the discussion). But my sense is that judges do care about the distinction; if this is so, then McDonald’s conclusion that the right as fundamental could prove important.
B. The Court also writes, responding to Justice Breyer’s dissent,
Justice Breyer is incorrect that incorporation will require judges to assess the costs and benefits of firearms restrictions and thus to make difficult empirical judgments in an area in which they lack expertise. As we have noted, while his opinion in Heller recommended an interest-balancing test, the Court specifically rejected that suggestion. “The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon.”
If one takes this seriously, then this suggests that the government might not be able to prevail with “reducing danger” arguments at all. Say, for instance, that the government argues that restrictions on handgun possesion by 18-to-20-year-olds are constitutional, based on data about gun crime by people in that age group (an argument that the district court seemed to accept, though in a somewhat procedurally complicated context, in United States v. Bledsoe, 2008 WL 3538717, *4 (W.D. Tex. Aug. 8), citing and reaffirming post–Heller the court’s earlier decision at 2008 WL 3538717, *4 (W.D. Tex. Mar. 20)). Under a standard intermediate or even strict scrutiny framework, this sort of argument might well work, on the theory that the government has shown that the law is substantially related to an important government interest in protecting life and preventing crime, or even that the law is narrowly tailored to a compelling government interest. But if indeed courts have no need “to make difficult empirical judgments” about the “costs and benefits of firearms restrictions,” because the “enumeration of the right takes out of the hands of government ... the power to decide on a case-by-case basis whether the right is really worth insisting upon.” (Compare Craig v. Boren, 424 U.S. 190, 203–04 & 208 n.22 (1976), which seems to largely but not entirely close the door to arguments that sex or race classifications would be constitutional when sex or race is a statistically sound proxy for some bad behavior.)
The same might be true with regard to arguments that bans on gun possession by people who are under domestic restraining orders pass intermediate or strict scrutiny, and so on. Perhaps such bans might still be upheld on the grounds that the historically approved scope of the right is limited to “peaceable citizens,” and excludes not just convicted felons but also people for whom there was a showing, by a preponderance of the evidence, that they had committed a violent misdemeanor (or something like that) and are likely to pose a continuing dangers. Or perhaps there are other reducing-danger arguments that could be approved under intermediate or strict scrutiny but without the use of statistical evidence. But if we take seriously the Court’s assertion that the Second Amendment bars courts from engaging in empirical decisionmaking about the supposed efficacy of gun controls, then it sounds like “reducing danger” arguments for gun controls become much harder to make.
These are just tentative predictions; I may well change my mind after thinking more about the decision, and in any event courts might well not put quite this much stock in the particular McDonald passages that I refer to. Still, I thought I’d flag them in case they’re helpful, interesting, or both.
Fiftycal says:
How about the argument that all fees/taxes for “licensing, registering, identifying, etc” are the equivalent of a POLL TAX? Is this right “fundamental” or not, depending on how much one is willing to PAY for the privilege? Fiftycal(Quote)
CDR D says:
There is an ‘en banc’ 9th CCA case (Nordyke) that has been in limbo awaiting this decision. It should be interesting what the 9th does now. CDR D(Quote)
cboldt says:
That the McDonald decision has some statements that can be construed as insisting on strict scrutiny, or otherwise seeming to curtail a decision that empowers the state to disarm unincarcerated persons; I see no reason that the lower courts can’t cherry pick phrases from Heller and McDonald, in a fashion similar to how they cherry picked passages from Presser and Miller.
The passages more likely to be cited are those that uphold restrictions, not those that might be used to limit restrictions. See, e.g., “Miller was convicted,” and Presser being read as green-lighting state action against the RKBA.
Even Thomas, in his concurring opinion in McDonald, presents Cruickshank in a way that avoids noting the absence of state action (and thereby causes a conclusion that the reasoning of the case is circular); and presents Presser without noting Presser –prohibited– the states from infringing the RKBA.
Now we’ll be treated to more revisionist history, whereby prohibitions on ex-felons in possession will be found “long standing.” cboldt(Quote)
road2serfdom says:
Volokh wrote: “(such as Heller’s statement that bans on gun possession by felons, bans on concealed carry, and several other kinds of gun controls are constitutional”
I hate to nitpick, but I don’t think the above is correct.
The majority in Heller wrote, “nothing our opinion [Heller] should be taken to cast doubt on...”
In other words, if you find a restriction unconstitutional, do so not by analyzing the law for the specific regulation, not by simply citing this decision. They never said the restrictions were constitutional, they only said that they were not ruling on it in Heller. road2serfdom(Quote)
cboldt says:
– There is an ‘en banc’ 9th CCA case (Nordyke) that has been in limbo awaiting this decision. –
The Nordyke decision was decided on “places” grounds. As originally promulgated, the Nordyke panel found the 2nd amendment to be incorporated; but then said this conclusion did not create a right to conduct a gun show on government-controlled property. IOW, incorporated or not is dicta, in the Nordyke case. cboldt(Quote)
Mark says:
And how does the standard of review look in less typical 2nd amendment cases such as the inevitable challenge to the Pittman-Robertson Act’s excise taxes on firearms and ammunition (it’s “just” like a poll tax! they will say. . .) since the tax does not apply to canoes, hiking boots, or Pop Tarts (all outdoor necessities). Mark(Quote)
cboldt says:
– They never said the restrictions were constitutional, they only said that they were not ruling on it in Heller. –
Heller’s dicta relating to ex-felons, and roughly to the 1934 NFA and the 1968 GCA, have been used as binding precedent by lower courts. While your description of the Heller rhetoric is technically correct, the practical effect of the dicta is as Professor Volokh states. The prohibitions are constitutional, until SCOTUS says they are not — and SCOTUS, speaking through Scalia, has said they are presumed constitutional. cboldt(Quote)
CDR D says:
That is so, but one of the 9th’s judges called for en banc review. I don’t know why. It was deferred awaiting McDonald. My guess is that one of the judges did not like the incorporation ‘dicta’. If so, I have to wonder how they will dispose of the case. CDR D(Quote)
cboldt says:
– one of the 9th’s judges called for en banc review [of Nordyke]. I don’t know why. –
Neither do I. I think the recall was to avoid causing the perception of a split between the circuits, relating to application of the 2nd amendment against the states. Now that SCOTUS has rendered a decision in that regard, the Nordyke en banc chore is simple — refer to McDonald (if they want), or reissue the opinion without any reference to incorporation with “the 2nd amendment isn’t about gun show permitting, it is about an individual right to possess a gun in the home for self defense (see Heller)” as the rationale. cboldt(Quote)
Dilan Esper says:
I don’t think there are 5 votes for any standard of review, which is why you haven’t seen one in two cases. That said, I suspect Professor Volokh is correct that “reducing danger” arguments are not likely to pass muster, while arguments that category X was historically excluded from the RKBA are probably going to be determinative. The Court may never, actually, announce a level of scrutiny and may simply invalidate laws that don’t have strong historical pedigrees and allow everything else. Dilan Esper(Quote)
Glen says:
“If one takes this seriously...” Well, what else would one do? Ignore it because it doesn’t conform to Prof. Volokh’s four-category system for evaluating restrictions on the right?
“Danger reduction” was always a weak plank. It’s inherently subjective, and would place the courts squarely between dueling statistical studies — and judges have proven many times that they are neither mathematicians nor statisticians.
Indeed, the most egregious gun restrictions have always been justified on the basis of “danger reduction.” Laws prohibiting certain types of weapons or specific features (all handguns, just semi-automatic handguns, so-called “large capacity” magazines, rosters of “not-unsafe” handguns, or arbitrary cosmetic appearances) could stand only on a clear and convincing showing that they in fact actually do reduce danger — and not simply on an emotional perception of danger. And the most egregious restriction on carry outside of the home (such as complete bans) likewise turn on perceptions of danger, rather than any quantifiable objective findings of danger.
So, no, the courts will not need to engage in empirical interest-balancing tests, because these tests are fundamentally invalid. They embody nothing more than majoritarian fear (or sometimes only elite fear), no different than fears in the past of people of different color, ethnicity, religion, etc. And we no longer consider the validity of those restrictions by conducting an empirical analysis... Glen(Quote)
Ben P says:
I may regret stepping into this, but the analogy isn’t really a good one. Federal Poll taxes are illegal because the 24th Amendment specifically says they are illegal. The case that extended poll taxes to state elections, Harper v Virginia Board of Elections, did not do so on a “fundamental rights” basis. It ruled poll taxes were unconstitutional under the equal protections clause of the 14th amendment because wealth had nothing to do with voting qualifications.
Although neither is perfect, I would say that “registration fees” (presuming that are equally applied, not “excessive,” and not simply a ban in disguise) that presumably cover the cost of checks or some other program related to the guns, are more akin to say court filing fees, or access fees to speak in a public venue. Ben P(Quote)
Federal Farmer says:
I agree that ‘Poll Taxes’ is an inapt analogy. That said, any significantly expensive gun control would amount to a ban to the poorest among us. As such, prohibitively costly regulations won’t pass muster. Federal Farmer(Quote)
Crafty Hunter says:
I’d wonder what the courts under MacDonald will have to say about the law in New York State which requires four character references for a handgun possession permit of any kind, which amounts to requiring that an individual be popular to exercise his right to possess a handgun. There’s also the matter of the typical minimum delay of six months for any such permit to be issued. I won’t even go into the county-to-county and judge-to-judge patchwork discrimination against individuals on whether to grant concealed carry rights as opposed to a mere “on-site” permit. Crafty Hunter(Quote)
SCOTUSblog » Special-edition round-up: today’s opinions says:
David Hess says:
Like the prohibitively costly regulations in the NFA which were rationalized as taxes for raising revenue? How can they be for raising revenue if registration of new arms is forbidden?
http://www.constitution.org/2ll/court/fed/us_v_rock_island.htm David Hess(Quote)
peterkuck says:
The “time allowed for permit hearings” will be addressed in the Kuck v. Danaher case that has been remanded to the U.S. District Court of Connecticut by the 2nd Circuit Court of appeals. The question of what due process rights are due citizens in firearms permit cases will now be reviewed and decideded by a district court within the 2nd circuit. peterkuck(Quote)
SCOTUS skyder med skarpt @ Punditokraterne says:
Edward Peruta says:
Given the “VARIATIONS” found in the firearm laws, regulations, policies and practices in various states, counties, cities and towns I can’t help but wonder how the following section of the McDonald decision will play out.
Here is the quote from the decision:
“Third, JUSTICE BREYER is correct that incorporation of the Second Amendment right will to some extent limit the legislative freedom of the States, but this is always true when a Bill of Rights provision is incorporated. Incorporation always restricts experimentation and local variations, but that has not stopped the Court from incorporating virtually every other provision of the Bill of Rights. “The enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U. S., at __ (slip op., at 64). This conclusion is no more remarkable with respect to the Second Amendment than it is with respect to all the other limitations on state power found in the Constitution.”
Everyone needs to put their thinking caps on and begin to apply this to facts and circumstances that currently exist in every state and local jurisdiction acrss the country.
I have begun by looking at the “VARIATIONS” in the laws, regulations, policies and practices that establish who may acquire, possess and carry firearms together with the justification for seizing weapons and revoking valid permits.
Then look at the VARIATIONS in how GOOD CAUSE statements are considered, approved and disapproved in California or SUITABILITY is determined and applied in the State of Connecticut. Then take the time to look at the laws, regulations, policies and practices in the States of Virginia, Pennsylvania, Florida, Utah and Arizona.
Anyone who does the research will not be able to deny that there are “VARIATIONS” in how Second Amendment rights are being acknowledged, regulated and denied across the country.
To see one example of EXPERIMENTATION AND VARIATION, simply compare the current attempt by California’s legislature to ban UNLOADED OPEN CARRY for what it really is, LEGISLATIVE EXPERIMENTATION with no real impact or effect on the current violence perpetrated by those that will continue to illegally possess and carry firearms for criminal purposes.
I believe that the courts will now be forced to somehow find that there must be one set of rules for and in ALL jurisdictions with NO VARIATIONS. Edward Peruta(Quote)
Yu-Ain Gonnano says:
It ruled poll taxes were unconstitutional under the equal protections clause of the 14th amendment because wealth had nothing to do with voting qualifications. — Ben P.
Would not taxes/fees and such on gun ownership be also an equal protections issue then? Or do only the rich have the right to own a gun? Yu-Ain Gonnano(Quote)
aeronathan says:
I was wondering about that myself. I also wonder if “undue cost burden” is a standard for violation, what of those manufacturing and transfer restrictions that artificially raise the price of arms beyond that which most people can afford.
Imagine if we passed a law that said printing presses had to be registered and a transfer tax paid. Then imagine that some years later that no presses of new manufacturer could be transfered, reducing supply and driving up the price.
That would seem to me to be a clear violation as is the combination of the NFA and FOPA ’86 provisions. aeronathan(Quote)
zippypinhead says:
I decided it’s time to re-read the Solicitor General’s Heller amicus brief on standard of review (esp. pp.20–32). Especially after the McDonald majority’s reaffirmation that a rational basis test isn’t appropriate in RKBA cases, the S.G.‘s “heightened scrutiny” proposal — which was advanced for the express purpose of allowing courts to uphold existing Federal firearms laws — may be the next best option for courts looking to validate state and local gun control schemes post–McDonald? zippypinhead(Quote)
Daily Pundit » Reading Invisible Tea Leaves says:
Mikee says:
Regarding “Heller’s statement that bans on gun possession by felons, bans on concealed carry, and several other kinds of gun controls are constitutional” I must disagree. I have read the decision in Heller, and I have read many comments such as that quoted, and the two are “at war” with each other, to use a popular Supreme Court phrase describing complete incompatibility.
The decision in Heller most emphatically did not grant unequivocal constitutionality to any of the above issues. The Court cannot decide the constitutionality of an issue that is not even before the Court for decision.
Scalia’s opinion in Heller notes that the case before the Supreme Court, Heller v. DC, does not address any of the above issues, and that therefore the status quo continues for those issues. That is all. Mikee(Quote)
A Texan says:
I wonder what level of scrutiny will be applied to the NJ AWB? IMHO, that prohibitionary piece of statist trash should, based on Heller and McDonald, be overruled, since it is a blanket ban on the ownership of a class of firearms and all magazines capable of holding >15 rounds of ammunition. The magazine part really gets me — how can someone go to jail for owning a metal or plastic box containing a spring? A Texan(Quote)
Brandon Combs says:
Oh, how we are indebted to Mr. Paul Clement.
Brandon Combs(Quote)
SCOTUSblog » McDonald v. City of Chicago and the Standard of Review for Gun Control Laws says:
zippypinhead says:
I wondered about so-called “assault weapon” bans as well. Some of of the Heller/McDonald reasoning should apply to AWBs as well.
And the exact same question can now be asked about nunchaku (see Maloney v. Rice — which SCOTUS just vacated and remanded today in light of McDonald).
The hard part of answering your question for semi-automatic rifles, nunchaku, or any other type of weapon, is that the Heller majority didn’t bother specifying what standard applied to D.C.‘s handgun ban, saying that it would fall under any standard. And a threshold issue under Heller is whether the weapon is in “common use.” Not sure where that leaves nunchaku. “Assault weapons” at least have to be considered “common” guns — the AR platform by itself is something over 1/3 of all rifle sales currently, and is used by almost 100% of highpower target rifle competitors (not counting extreme long-range and vintage service rifle groups).
But just because handguns passed Second Amendment muster, other common weapons might not. If you’re under an intermediate scrutiny standard, I suppose the fact semi-auto rifles are far less popular than handguns for home defense might make bans less suspect. Then again, most of the arguments advanced in support of D.C.‘s and Chicago’s handgun bans simply don’t apply to semi-auto rifles — Federal statistics suggest they’re used in maybe 1% of homicides, if that (all rifles are at about 3%). And if “dangerousness” is measured by pure stopping power, your average .223, 7.62x39 or .30 carbine can’t hold a candle to a 12-gauge shotgun at close quarters.
So it’s all roughly as clear as mud right now. zippypinhead(Quote)
peterkuck says:
“Incorporation always restricts experimentation and local variations, but that has not stopped the Court from incorporating virtually every other provision of the Bill of Rights.”
This could be the door opener for true state reciprocity in regards to state issued pistol permits as well as the death knell for any state level AWB (If I can own it in Texas, what do you mean I’m a felon for owning it here?) peterkuck(Quote)
dfb says:
Perhaps 2nd Amendment jurisprudence will follow the fractious 1st Amendment. In which case, we’ll have a general peaceable and non-peaceable uses or categorizations of the persons who hold the right. And gov’t actions will be split into the familiar facial versus neutral but incidental burdens/reasonable restrictions distinctions.
Peaceable persons and uses (strict/intermediate scrutiny)
- persons without criminal or psychological problems
- hunting rifles
- gun stores
- collectible antiques
- handguns
Non-peaceable persons and uses (rational basis)
- violent crime felons
- mentally ill
- military grade weapons and ammo (e.g. tanks, high caliber guns, automatic machine guns, armor piercing ammo, bazookas)
I think even the so-called conservative justices understand there is a practical need to restrict guns from some people or that are intended for specific purposes. dfb(Quote)
McDonald v. City of Chicago and the Standard of Review for Gun Control Laws | theConstitutional.org says:
Bill Cyrus says:
Your guess is most likely correct. The en banc was called for to sabotage incorporation, nothing more.
Bill Cyrus(Quote)
RKV says:
One already existing precedent which articulates an appropriate standard of review is found in US v. Miller. Specifically as it returned the case to trial court for a finding of fact on whether the gun in question (shotgun) was suitable for militia use and therefore protected from government restrictions on possession/carry. This standard should be further determined by review of the Constitutional text, to wit Article 1 Section 8: “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” So, to perform the constitutionally defined missions of the militia certain types of arms are required — for instance to “execute the laws” we could look to the equipment of state and federal police for examples. A brief listing of typical personal armament used by the police for law enforcement (both offensive and defensive) would include saps, batons, mace, shotguns, tasers, concealed handguns (aka backup guns), bullet proof armor, smoke and CN grenades, switchblade knives and full and semi-auto rifles, bolt action “sniper” rifles, night vision gear, etc. You can extend that logic to “repel invasions” for yourselves. Works for me anyway. And it has the merit of being consistent with the plain wording of the Constitution, the history of our militia laws (see the Militia Act of 1792 for example) and precedent — stare decicis. RKV(Quote)
Peter Gerdes says:
As a practical matter I would welcome courts weighing these kinds of costs and benefits using statistical evidence. This is exactly the kind of decision that judges are particularly well suited to make and other branches of government particularly poorly suited to make.
It’s a situation where correct judgement doesn’t require expertise as much as the motivation to plow through a huge amount of evidence and expert opinion. Quite likely leading to results that are in strong tension with people’s intuitions. The public, and even legislators, lack the time and the temptation to signal one’s values (for families against dangerous assault weapon toting bad guys) rather than follow the evidence is simply too strong.
Most disturbingly of all is the fact that in these situations rather than evaluating if the right brings benefits to others the temptation is to instead ask “is there a reason for people to exercise the right” meaning do people like me get a benefit. It’s why drug laws are so hard to overturn and it’s why nice suburban voters often don’t even think to look at the data on assault weapons before supporting a ban. Peter Gerdes(Quote)
RKV says:
Peter you are assuming that judges will give rational consideration to the evidence. Sotomayor’s performance in McDonald ran directly contrary to her Senate confirmation testimony. I’d impeach her. Then of course I’d impeach a couple of other Supes just to “encourager les autres.” RKV(Quote)