What to watch for in the big Second Amendment decision

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What to Watch For in D.C. v. Heller

posted by Mike O'Shea

The Supreme Court’s next scheduled opinion day, Monday, June 16, could yield a decision in the landmark Second Amendment case of D.C. v. Heller. My guess is that we’ll see Heller on or after June 23, at the very end of the Term. I guess that simply because Heller is the biggest case of the year, it raises wide-open constitutional issues, and it was argued late in the Term, in mid-March.

Either way, here are key points to look for when the opinions arrive. As you’ll see, many of them only come into play if a majority of the Court interprets the Second Amendment as securing an individual constitutional right to arms. Since I think this is the more likely (but by no means guaranteed!) outcome, I’ll run with that assumption in much of what follows.

1. Recognition of an Individual Right to Arms? The threshold issue. Will the Court recognize a genuinely individual right to arms, i.e., one that is not contingent upon participation in a state-regulated military organization? Like most observers, I interpreted the oral argument as revealing that there were between five and seven votes among the Justices for a genuine individual right.

2. What Purposes Does the Right Protect? Privately owned firearms can potentially serve a variety of legitimate purposes. Some of these are civic purposes: deterring tyranny; protecting against invasion or internal disorder; promoting military readiness through individual practice with firearms. Others are private, personal purposes: self-defense against criminal violence; hunting; participating in the shooting sports. Assuming that the Court recognizes an individual Second Amendment right to arms, will it interpret that right in a way that stresses protection for the private purposes of citizen arms — as urged by the provocative amicus brief of Professor Nelson Lund? Or will it emphasize the civic purposes of citizen arms — as it seemed to do in the 1939 Miller decision? Or will it (correctly, in my view) embrace both kinds of purposes, as do many state constitutional decisions? The answer to this question will greatly influence the success of future Second Amendment challenges to restrictive gun legislation. ...

Some kinds of restrictions (such as D.C.’s draconian “safe storage” requirements that do not allow a resident to keep any firearm in a usable defensive condition in her home) impinge most strongly on the private purposes of gun ownership. Others, such as bans on modern semiautomatic rifles, seem more likely to come into tension with the civic purposes of gun ownership, to the extent those are recognized as part of the Second Amendment.

3. Whither Miller? In the same vein, it will be fascinating to see how the Heller Court handles the 69-year-old opinion in U.S. v. Miller. Miller is compatible with an individual right to arms that stresses the civic purposes of arms ownership, and the concept of the citizen militia and the “ordinary military equipment” pertaining to it. Many members of the Court are clearly uneasy at the prospect of a strong interpretation of Miller, which one might boil down crudely into the formula: “machine guns for the people!”. In oral argument in Heller, Justice Kennedy openly questioned whether Miller should continue to provide the guiding framework for Second Amendment adjudication. I predict that the Court will put some distance between itself and a strict reading of Miller, perhaps through some agile recasting of the earlier opinion.

4. What Level of Scrutiny Applies? The Heller briefing featured an intense debate about whether Second Amendment challenges implicate strict scrutiny, or some more deferential standard of review. Again, the answer to this question will directly affect Heller's future value as a litigating tool to challenge restrictive gun legislation. One possibility (suggested by Chief Justice Roberts during the oral argument) is that the Court will not squarely resolve this issue, but will instead give us an opinion that suggests a heightened, but unspecified, form of scrutiny, leaving it to lower courts and later cases to flesh out many of the details of the right. This approach might recall the famously open-textured opinion in Lawrence v. Texas, which recognized an unenumerated substantive due process right to adult noncommercial consensual sex.

5. Will the Court Actually Strike Down the Challenged Provisions of D.C. Law? Whatever doctrinal moves a pro-rights Heller opinion might make, the bottom-line result will be vital in determining the decision’s effect in the lower courts. Lower federal courts did not begin to take the limits of the Commerce Clause even semi-seriously until the Supreme Court actually started striking down laws that exceeded them, in U.S. v. Lopez and U.S. v. Morrison. Similarly, as Brannon Denning has discussed, most lower federal courts have traditionally been hostile to Second Amendment claims — hostile well beyond the limits suggested by the Supreme Court’s ambiguous 1939 Miller decision. The practical force of the Second Amendment right announced in Heller (if that is what happens) may depend heavily on whether the Court is willing to reject the Solicitor General’s call for a remand, and actually hold unconstitutional the D.C. handgun ban, the ban on functional firearms in the home, or all the challenged provisions. Presenting the lower courts with a square holding of unconstitutionality would make clear that the Second Amendment is now a real part of American constitutional law.

6. Are “Keep” and “Bear” Separate Rights? State constitutional right-to-arms opinions often distinguish the right to “keep” arms from the right to “bear” them, concluding that bearing arms for use outside the home permits a greater level of regulation than keeping them on one’s own property. For example, in a 2004 decision, the Rhode Island Supreme Court described “the keeping of arms” at an individual’s “home or business” as “the sine qua non of the individual right” to arms.

The D.C. Circuit’s opinion below suggested that the challenged D.C. provisions violated Mr. Heller’s Second Amendment right to “keep” arms. There was an interesting exchange on this point during the Heller oral argument, when Solicitor General Clement refused to accept Justice Stevens’s insistence that “keep and bear” should be interpreted as a unitary provision.

7. Blocs of Justices. While I believe that the Court will be able to generate a majority opinion in Heller, I suspect that the Justices will use concurring and/or dissenting opinions to express different views on how to interpret the right to arms.

I expect Justices Scalia and Thomas to take a strong pro-rights stance, endorsing a version of Miller than gives broad protection to those militia-useful firearms that are commonly owned by Americans today, and protects both civic and private purposes.

I think Justice Kennedy (possibly joined by Chief Justice Roberts and Justice Alito) is likely to endorse a conception of the right to arms that distances itself from Miller, and focuses more narrowly on private purposes. This might allow legislatures somewhat more latitude to regulate the types of firearms owned than the than the view I’m (tentiatively) ascribing to Scalia, Thomas, and Miller. But it would still require government to respect a range of traditional uses for private arms, definitely including self-defense, and possibly hunting and recreation as well. I predict either Justice Kennedy or Chief Justice Roberts will write the Court’s opinion, and this bloc’s view of the Second Amendment is likely to govern the case.

In oral argument, Justice Breyer seemed interested in a conception of the right to arms that would protect individual arms ownership to some degree, but would focus tightly on civic purposes, and therefore allow potential militiamen to keep ordinary rifles and shotguns in order to practice with them. However, it seemed that Breyer’s conception would not give much weight to private purposes for arms ownership, such as self-defense. Justice Ginsburg’s views were hard to ascertain in the oral argument, but if forced to guess, I think she may embrace Justice Breyer’s view.

Finally, Justice Stevens seemed to support the formerly received, 1970s-vintage view of the Second Amendment, under which it protects no sort of individual right to possess arms that is enforceable apart from the say-so of a state government and an organized state military force. Justice Souter’s unrelentingly negative questioning in oral argument leads me to think he will join Justice Stevens’s view.

8. Hints About Other Federal Gun Laws? If the Court recognizes an individual right to arms, it may use dicta in Heller to stave off future challenges to certain federal gun laws by stressing that these laws are not called into question by the holding. It’s very likely that any pro-rights opinion will say something to distinguish the federal machinegun ban, 18 U.S.C. § 922(o), the federal ban on possession of firearms by convicted felons, 18 U.S.C. § 922(g)(1), and perhaps the federal restrictions on armor-piercing handgun ammunition, 18 U.S.C. §§ 921(a)(17)(, 922(a)(7)-(8), which were brought up at oral argument.

Other, less likely candidates for distinguishing dicta include so-called “assault weapon” bans on modern semiautomatic firearms; the controversial federal “Lautenberg Amendment,” 18 U.S.C. § 922(g)(9), which strips individuals convicted of certain misdemeanors of the right to arms; and the very broad federal Gun-Free School Zones Act, 18 U.S.C. § 922(q) (re-enacted in 1996 after an earlier version was invalidated in U.S. v. Lopez). Since I do think that at least some of the federal statutes in the latter list are violative of the Second Amendment, I hope that the Court will not pre-judge their constitutionality in its Heller opinion.

9. Hints About Incorporation? If D.C.’s handgun ban is held unconstitutional in Heller (as it should be), the city of Chicago’s essentially identical ban on handguns will offer a prime target for a test case designed to present the issue of Second Amendment incorporation. A lower court that considers the issue in light of the Supreme Court’s post-1960 “selective incorporation” precedents will have a very difficult time avoiding the incorporation of the Second Amendment, at least in some form, against state and local governments. The only way lower courts might be able to avoid that conclusion is by cleaving to nineteenth century Supreme Court opinions like Presser v. Illinois and U.S. v. Cruikshank that declined to incorporate the Second Amendment, just as the Court at that time declined to incorporate the other provisions of the Bill of Rights. The Court repeatedly rejected this approach during the twentieth century.

So it will be interesting to see whether Heller nods to incorporation — perhaps in a passage that acknowledges the issue, reserves decision on it, and notes that the governing law of incorporation has changed dramatically since Presser and Cruikshank were decided. Such an observation would help encourage the lower courts to consider the issue afresh.

10. A GVR in the companion case? The Supreme Court litigation in D.C. v. Heller has been so rich and important that one forgets about the accompanying cross-petition for certiorari, Parker v. D.C. The Heller litigation originally involved six different plaintiffs, each raising slightly different challenges to D.C.'s gun laws. However, the D.C. Circuit panel dismissed five of the six plaintiffs (all but Dick Heller) under an unusual standing doctrine that the circuit had adopted in an earlier Second Amendment case. This is why the case was recaptioned from Parker to Heller when it reached the Supreme Court.

When the District of Columbia petitioned the Supreme Court for review of the D.C. Circuit's opinion granting judgment in Mr. Heller's favor, plaintiffs' counsel cross-petitioned for review of the denial of standing to the other five plaintiffs. The cert petition on the standing issue, still captioned Parker, has been waiting in limbo on the Justices' desks for seven months, while the Court has granted cert in Heller and held briefing and argument on the Second Amendment merits issue.

I predict that if the Court holds for Mr. Heller on the Second Amendment issue, it will consider this to be quite enough work for one day without also wading into the tangled complexities of standing doctrine. It will "GVR" (summarily Grant, Vacate, and Remand) the Parker part of the litigation back to the D.C. Circuit, which will have to reconsider the question of Second Amendment standing for the other plaintiffs, in light of what the Court says about the nature of the Second Amendment right in Heller.

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