Amicus Curiae Brief — New York State Rifle & Pistol Association, Inc., et al., Petitioners v. Kevin P. Bruen, in His Official Capacity as Superintendent of New York State Police, et al.

No. 20-843

In the

Supreme Court of the United States

__________________________________________

NEW YORK STATE RIFLE & PISTOL

ASSOCIATION, INC., et al.,

Petitioners,

v.

KEVIN P. BRUEN, IN HIS OFFICIAL CAPACITY AS

SUPERINTENDENT OF NEW YORK STATE POLICE, et al.,

Respondents.

__________________________________________

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

__________________________________________

BRIEF OF AMICUS CURIAE

J. JOEL ALICEA IN SUPPORT

OF PETITIONERS AND REVERSAL

__________________________________________

JOHN D. OHLENDORF

Counsel of Record

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

johlendorf@cooperkirk.com

Counsel for Amicus Curiae

July 20, 2021

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS ........................................... 1

INTRODUCTION ....................................................... 2

SUMMARY OF ARGUMENT .................................... 4

ARGUMENT .............................................................. 7

I.

The tiers of scrutiny were created in the

mid-twentieth century as an expedient way

of balancing away First Amendment rights...... 8

II.

The tiers of scrutiny are inconsistent with

the Constitution’s original meaning. ............... 14

III. The tiers of scrutiny are indeterminate and

manipulable. ..................................................... 21

IV. The tiers of scrutiny should not be extended

into the Second Amendment context. .............. 27

CONCLUSION ......................................................... 32

ii

TABLE OF AUTHORITIES

Page

CASES

American Legion v. American Humanist Ass’n,

588 U.S. ___, 139 S. Ct. 2067 (2019) ...................... 31

Brandenburg v. Ohio,

395 U.S. 444 (1969)................................................. 30

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014)................................................. 23

Crawford v. Washington,

541 U.S. 36 (2004)................................................... 30

District of Columbia v. Heller,

554 U.S. 570 (2008)................................... 2, 3, 28, 29

Employment Div. v. Smith,

494 U.S. 872 (1990)................................................. 15

Ezell v. City of Chicago,

651 F.3d 684 (7th Cir. 2011) .................................... 3

Fulton v. City of Philadelphia,

593 U.S. ___, 141 S. Ct. 1868 (2021) ................ 15, 23

Gamble v. United States,

587 U.S. ___, 139 S. Ct. 1960 (2019) ...................... 27

GeorgiaCarry.Org, Inc. v. United States Army

Corps of Eng’rs,

788 F.3d 1318 (11th Cir. 2015) ............................ 3, 4

Gould v. Morgan,

907 F.3d 659 (1st Cir. 2018) ............................... 3, 25

iii

Heller v. District of Columbia,

670 F.3d 1244 (D.C. Cir. 2011) ........... 2, 4, 17, 29, 30

Kachalsky v. County of Westchester,

701 F.3d 81 (2d Cir. 2012) ............................ 1, 2, 3, 7

Knick v. Township of Scott,

588 U.S. ___, 139 S. Ct. 2162 (2019) ...................... 27

Kyllo v. United States,

533 U.S. 27 (2001)................................................... 26

Lamb’s Chapel v. Center Moriches Union Free

Sch. Dist.,

508 U.S. 384 (1993)................................................. 31

Lemon v. Kurtzman,

403 U.S. 602 (1971)................................................. 31

McCulloch v. Maryland,

4 Wheat. (17 U.S.) 316 (1819) ...................... 9, 10, 18

McDonald v. City of Chicago,

561 U.S. 742 (2010)................................. 2, 26, 28, 29

Miami Herald Pub. Co. v. Tornillo,

418 U.S. 241 (1974)................................................. 30

Moore v. Madigan,

702 F.3d 933 (7th Cir. 2012) .................................. 25

NAACP v. Button,

371 U.S. 415 (1963) .......................................... 12, 13

National Rifle Ass’n of Am., Inc. v. BATFE,

700 F.3d 185 (5th Cir. 2012) .................................... 3

iv

New York State Rifle & Pistol Ass’n v.

City of New York,

590 U.S. ___, 140 S. Ct. 1525 (2020) ...................... 29

New York Times Co. v. Sullivan,

376 U.S. 254 (1964)................................................. 30

Rogers v. Grewal,

140 S. Ct. 1865 (2020) ............................................ 29

Shapiro v. Thompson,

394 U.S. 618 (1969)................................................. 13

Sherbert v. Verner,

374 U.S. 398 (1963)................................................. 13

Stanley v. Georgia,

394 U.S. 557 (1969)................................................. 30

Sweezy v. New Hampshire,

354 U.S. 234 (1957)................................................. 11

Teixeira v. County of Alameda,

873 F.3d 670 (9th Cir. 2017) .................................. 27

Town of Greece, N.Y. v. Galloway,

572 U.S. 565 (2014)................................................. 30

Tyler v. Hillsdale Cnty. Sheriff’s Dep’t,

837 F.3d 678 (6th Cir. 2016) .................................... 3

United States v. Chester,

628 F.3d 673 (4th Cir. 2010) .................................... 3

United States v. Chovan,

735 F.3d 1127 (9th Cir. 2013) .................................. 3

United States v. Gaudin,

515 U.S. 506 (1995)................................................. 30

v

United States v. Jones,

565 U.S. 400 (2012) ................................................ 30

United States v. Marzzarella,

614 F.3d 85 (3d Cir. 2010) ........................................ 3

United States v. Reese,

627 F.3d 792 (10th Cir. 2010) .................................. 3

United States v. Windsor,

570 U.S. 744 (2013)................................................. 25

Uphaus v. Wyman,

360 U.S. 72 (1959)................................................... 12

Village of Arlington Heights v. Metropolitan

Hous. Dev. Corp.,

429 U.S. 252 (1977)................................................. 20

Whole Woman’s Health v. Hellerstedt,

579 U.S. ___, 136 S. Ct. 2292 (2016) ........... 8, 14, 21

Woolard v. Gallagher,

712 F.3d 865 (4th Cir. 2013) ............................ 25, 26

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. CONST. amend. I ................................................ 11

42 U.S.C. § 20000bb-1(b) ..................................... 21, 22

OTHER AUTHORITIES

Joel Alicea & John D. Ohlendorf, Against the

Tiers of Constitutional Scrutiny, NATIONAL AFFAIRS (Fall 2019) ................................................ 1, 28

vi

Stephanie H. Barclay, The Historical Origins

of Judicial Religious Exemptions, 96 NOTRE

DAME L. REV. 55 (2020) .......................................... 14

Randy E. Barnett, Interpretation and Construction, 34 HARV. J.L. PUB. POL’Y 65 (2011)............... 16

Brief for the Petitioners 46–51, Burwell v. Hobby

Lobby Stores, Inc., No. 13-354 (U.S. Jan. 10,

2014) ....................................................................... 22

Jud Campbell, Natural Rights and the First

Amendment, 127 YALE L.J. 246 (2017) ................. 16

Argument Transcript, District of Columbia v.

Heller 44:18–21, No. 07-290 (U.S. Mar. 18,

2008) ....................................................................... 28

JOHN HART ELY, DEMOCRACY & DISTRUST

(1980)................................................................ 19, 20

Richard H. Fallon, Jr., Strict Judicial Scrutiny,

54 UCLA L. REV. 1267 (2007) ............... 9, 16, 21, 23

Philip Hamburger, The Inversion of Rights and

Power, 63 BUFF. L. REV. 731 (2015) ...................... 17

Vicki C. Jackson, Constitutional Law in an Age

of Proportionality, 124 YALE L.J. 3094 (2015) ...... 18

Elena Kagan, Private Speech, Public Purpose:

The Role of Governmental Motive in First

Amendment Doctrine, 63 U. CHI. L. REV. 413

(1996) ..................................................................... 19

Michael W. McConnell, Religious Freedom at a

Crossroads, 59 U. CHI. L. REV. 115 (1992) ............ 31

vii

Henry P. Monaghan, Our Perfect Constitution, 56

N.Y.U. L. REV. 353 (1981) ...................................... 19

Thomas B. Nachbar, The Rationality of Rational

Basis Review, 102 VA. L. REV. 1627 (2016) ........... 10

Stephen A. Siegel, The Origin of the Compelling

State Interest Test and Strict Scrutiny, 48 AM.

J. LEGAL HIST. 355 (2006) ................................ 10, 11

Lawrence B. Solum, The InterpretationConstruction Distinction, 27 CONST. COMMENT.

95 (2010) ................................................................. 16

G. Edward White, Historicizing Judicial Scrutiny, 57 S.C. L. REV. 1 (2005) ............................. 8, 10

KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION (2001) ................................................... 16

1

INTEREST OF AMICUS1

J. Joel Alicea is an assistant professor of law at

Catholic University of America’s Columbus School of

Law.2 Professor Alicea’s scholarship focuses on constitutional theory, and his articles have appeared, or are

forthcoming, in the Virginia Law Review, University

of Pennsylvania Journal of Constitutional Law, and

the Harvard Journal of Law & Public Policy. In 2019,

Professor Alicea published an essay about the history

and validity of the tiers of constitutional scrutiny,

Against the Tiers of Constitutional Scrutiny, NATIONAL AFFAIRS (Fall 2019) (with John D. Ohlendorf),

upon which this brief is largely based, and he has spoken in multiple public fora on the subject. Professor

Alicea has a strong interest in this case because the

Second Circuit precedent that dictated the decision

below, Kachalsky v. County of Westchester, 701 F.3d

81 (2d Cr. 2012), was fundamentally premised upon

the application of the tiers of scrutiny to Second

Amendment challenges.

1 Pursuant to SUP. CT. R. 37.3(a), amicus certifies that all

parties have consented to the filing of this brief. Pursuant to SUP.

CT. R. 37.6, amicus certifies that no counsel for any party authored this brief in whole or in part, no party or party’s counsel

made a monetary contribution to fund its preparation or submission, and no person other than amicus or his counsel made such

a monetary contribution.

2 Professor Alicea appears in his personal capacity. His in-

stitutional affiliation is provided for identification purposes only.

2

INTRODUCTION

In District of Columbia v. Heller, this Court held

that the Second Amendment protects “the individual

right to possess and carry weapons in case of confrontation,” and that government restrictions of that right

should be analyzed by measuring them against the

Amendment’s text, as understood by “ordinary citizens in the founding generation,” as well as “the historical understanding of the scope of the right.” 554

U.S. 570, 577, 592, 625 (2008). In adopting this framework, the Court affirmatively rejected the use of “a

judge-empowering ‘interest-balancing inquiry,’ ” reasoning that “Constitutional rights are enshrined with

the scope they were understood to have when the people adopted them, whether or not future legislatures

or (yes) even future judges think that scope too broad.”

Id. at 634–35. The controlling plurality opinion of the

Court in McDonald v. City of Chicago reaffirmed the

point. 561 U.S. 742, 790–91 (2010). Heller and McDonald thus instruct that “courts are to assess gun bans

and regulations based on text, history, and tradition,

not by a balancing test such as strict or intermediate

scrutiny.” Heller v. District of Columbia (“Heller II”),

670 F.3d 1244, 1271 (D.C. Cir. 2011) (Kavanaugh, J.,

dissenting).

The decision below upheld New York’s “proper

cause” licensing scheme for carrying concealed firearms based on a scrutiny analysis that cannot be

squared with this Court’s clear directions in Heller.

The Second Circuit’s decision in Kachalsky v. County

of Westchester, 701 F.3d 81 (2d Cir. 2012)—which

3

dictated the panel’s decision in this case, Pet. App. 2—

held that “some form of heightened scrutiny” applied

in Second Amendment cases, concluded that “intermediate scrutiny is appropriate” for regulations on the

carrying of firearms outside the home, and determined that New York’s “proper cause” restriction

passes muster under that test because it is “substantially related” to the “substantial, indeed compelling,

governmental interests in public safety and crime prevention.” Kachalsky, 701 F.3d at 93, 96–97. And the

Second Circuit is not alone in ignoring Heller’s text,

history, and tradition standard in favor of the very

“judge-empowering ‘interest-balancing inquiry’ ” that

this Court deliberately rejected. Heller, 554 U.S. at

634. Every other regional Court of Appeals except the

Eighth Circuit has also explicitly adopted some form

of scrutiny analysis for Second Amendment claims—

with most cases settling on a watered-down version of

the “intermediate scrutiny” test that resembles nothing so much as the interest-balancing inquiry advocated by the dissent in Heller. 554 U.S. 689–90

(Breyer, J., dissenting).3

3 See, e.g., Gould v. Morgan, 907 F.3d 659, 670–71 (1st Cir.

2018); United States v. Marzzarella, 614 F.3d 85, 95–98 (3d Cir.

2010); United States v. Chester, 628 F.3d 673, 682–83 (4th Cir.

2010); National Rifle Ass’n of Am., Inc. v. BATFE, 700 F.3d 185,

195–96 (5th Cir. 2012); Tyler v. Hillsdale Cnty. Sheriff’s Dep’t,

837 F.3d 678, 690–93 (6th Cir. 2016) (en banc) (plurality); Ezell

v. City of Chicago, 651 F.3d 684, 703 (7th Cir. 2011); United

States v. Chovan, 735 F.3d 1127, 1137–38 (9th Cir. 2013); United

States v. Reese, 627 F.3d 792, 801–02 (10th Cir. 2010); GeorgiaCarry.Org, Inc. v. United States Army Corps of Eng’rs, 788

4

In addition to flouting Heller’s directions, the application of intermediate scrutiny in these cases extends into the Second Amendment context a doctrinal

framework that is both contrary to the Constitution’s

original meaning and analytically dubious even on its

own terms. The familiar “tiers of scrutiny” framework—a trio of doctrinal tests ranging from “strict

scrutiny” through “intermediate scrutiny” and down

to “rational-basis review”—looms large in modern discussions of constitutional law. This three-tiered

method of analysis has come to dominate the jurisprudence of the First Amendment’s Free Speech Clause

and the 14th Amendment’s Equal Protection Clause.

But the tiers of scrutiny have no basis in the text or

original meaning of the Constitution. They emerged

as a political solution put forward by the Justices on

the Court in the middle of the twentieth century to

navigate internal factions at the Court. The Court

should take this opportunity to reaffirm Heller’s rejection of balancing tests like the tiers of scrutiny and

reassert a method of constitutional analysis based on

the text and history of the Constitution.

SUMMARY OF ARGUMENT

I. The history of the tiers of scrutiny reveals that

they do not have a strong claim to legitimacy. While

the scrutiny framework appears to be the normal

method of constitutional analysis today, it was not always so. For much of American history, beginning

F.3d 1318, 1325–28 (11th Cir. 2015); Heller II, 670 F.3d at 1252–

53.

5

with the Founding, courts analyzed the constitutionality of government actions not by weighing governmental interests but by determining the scope of constitutional rights and powers through textual and historical analysis. The tiers-of-scrutiny framework

emerged only in the mid-twentieth century—and even

then, it was devised not as a faithful implementation

of the Constitution’s meaning but as a politically-expedient compromise that united the various factions

on the Supreme Court at that time to evade the categorical language of the Free Speech Clause.

II. As their questionable history suggests, the tiers of scrutiny are not consistent with the Constitution’s original meaning and were never meant to be.

For the design and function of the scrutiny tests—

which generally kick in only after a judicial determination that the challenged government action impinges upon the scope of the constitutional right in

question—is to find reasons to uphold the government

infringement anyway, on the implicit notion that the

government’s interest in acting unconstitutionally

outweighs the value of the constitutional right it has

infringed. This balancing of government power

against constitutional rights may be suitably designed

to empower courts to reach the normatively best outcome—that is, the normatively best outcome in the

eyes of the judges. What it does not do, by its very nature, is faithfully implement the value choices that the

People enshrined in the Constitution, as originally understood.

6

III. The tiers of scrutiny ought to be rejected

even by those who adhere to a method of constitutional interpretation that sanctions departure, in

some cases, from the document’s text and original

meaning. The scrutiny framework lacks the most important feature of any doctrinal tool consistent with

bedrock rule-of-law principles: it does not meaningfully guide legal analysis. At every turn, the tiers of

scrutiny fail basic standards of analytical rigor. Their

application fundamentally depends on the question of

what level of generality to use when describing the

government’s interest—a question that will generally

have no right answer. Even once a particular level of

generality is selected, the inquiry into whether the

government’s interest is sufficiently important or

compelling is simply a policy judgment, unconstrained

by any objective or determinate principles. And the

determination whether the challenged restriction is

sufficiently tailored to the government’s proffered interest is equally unmoored—turning on contested and

complex empirical judgments that are far beyond the

judge’s ken.

IV. Whatever support the doctrine of stare decisis might lend to the tiers of scrutiny in those constitutional contexts where they have already been

adopted—and there is good reason to think that this

support is weak and insufficient to justify their continued use—precedent provides no basis to extend the

dominion of the tiers of scrutiny to the Second Amendment. This Court’s decisions in Heller and McDonald

already made it clear enough that Second Amendment

7

cases are to be decided based on text and history—not

interest-balancing inquiries. Indeed, even outside the

context of the right to keep and bear arms, the domain

of the tiers-of-scrutiny framework is much smaller

than is often acknowledged. From the Confrontation

Clause and other constitutional criminal-procedure

rights to the Establishment Clause and the Fourth

Amendment, this Court routinely decides constitutional cases without resort to any of the tiers of scrutiny. Given the analytical deficiencies of the scrutiny

framework and their incompatibility with the Constitution’s original meaning, this Court should be looking for opportunities to reduce the constitutional terrain they have colonized over the last six decades. It

certainly should not import the critically flawed scrutiny tests into the Second Amendment context.

ARGUMENT

The decision below summarily upheld New

York’s “proper cause” licensing requirement for carrying a firearm outside the home on the authority of the

Second Circuit’s earlier decision in Kachalsky v.

County of Westchester, which concluded that New

York’s licensing scheme is subject to “intermediate

scrutiny,” and that it survives that mode of analysis

because it “is substantially related to the achievement

of an important governmental interest.” 701 F.3d at

96; see Pet. App. 2. The Second Circuit erred from the

start, because neither intermediate scrutiny nor any

of the other so-called “tiers of scrutiny” do, or should,

apply to Second Amendment challenges. Indeed, the

tiers-of-scrutiny framework is contrary to the

8

Constitution’s original meaning even outside the context of the Second Amendment. And the continued application of this twentieth-century doctrinal invention

creates real problems throughout the full panoply of

constitutional litigation, by muddying judicial analysis and inviting manipulation. This Court should rethink the role of the tiers of scrutiny in constitutional

adjudication writ large—and it certainly should not

extend this doctrinal frame to the Second Amendment, where the constitution’s text and history provide a ready means for analyzing laws that impinge

upon the right to keep and bear arms.

I.

The tiers of scrutiny were created in the

mid-twentieth century as an expedient way

of balancing away First Amendment rights.

Today, analysis of certain constitutional questions through the lens of the tiers of scrutiny is commonplace, part of the unquestioned backdrop of constitutional law. G. Edward White, Historicizing Judicial Scrutiny, 57 S.C. L. REV. 1, 2 (2005) (“It seems not

much of an overstatement to say that the Supreme

Court’s constitutional jurisprudence for the last sixtyodd years has been consistently preoccupied with

what level of judicial scrutiny to afford constitutionally challenged actions by other branches of government.”). Yet, despite its familiarity, tiers-of-scrutiny

analysis is “of recent vintage,” dating back no earlier

than the mid-twentieth century. Whole Woman’s

Health v. Hellerstedt, 579 U.S. ___, 136 S. Ct. 2292,

2327 (2016) (Thomas, J., dissenting). Understanding

the origins of the tiers of scrutiny is essential to

9

understanding the hollowness of their claim to constitutional dominance.

At the time of the Founding, American courts did

not use “strict scrutiny” or “rational-basis review” to

sift the constitutionality of federal or state laws; instead, they engaged in the more lawyerly task of attempting to determine the scope of constitutional

rights and legitimate governmental powers. As Professor Richard Fallon has put the point, “[t]hrough

most of constitutional history, the Court conceived its

task as marking the conceptual boundaries that defined spheres of state and congressional power on the

one hand and of private rights on the other.” Richard

H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L.

REV. 1267, 1285 (2007).

This method is well-illustrated by Chief Justice

Marshall’s landmark opinion upholding the first Bank

of the United States in McCulloch v. Maryland, 4

Wheat. (17 U.S.) 316 (1819). As Chief Justice Marshall saw the case, the constitutionality of the bank,

and of Maryland’s attempt to tax it, was to be determined by demarcating “the conflicting powers of the

government of the Union and of its members, as

marked in th[e] constitution.” Id. at 400. And the

Chief Justice sought to limn these boundaries through

textual and conceptual analysis: inquiry into the

words of the constitutional text, as understood in

“common usage,” and explication of the nature of sovereignty, taxation, and the federal union itself. Id. at

410–13, 414, 428–31. Chief Justice Marshall explicitly

prescinded from the type of policy analysis

10

emblematic of the tiers of scrutiny—the weighing of

the importance of legislative ends and the sufficiency

of legislative means. “[W]here [a challenged] law is

not prohibited, and is really calculated to effect any of

the objects intrusted to the government,” the Court insisted, “to undertake here to inquire into the degree of

its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to

such a power.” Id. at 423.

Such judicial modesty was not to last. For complex reasons having to do in part with the rise of progressivism at the beginning of the twentieth century,

the vision of the judicial role reflected in McCulloch

came under assault, creating a legal environment that

eventually led to the development of the tiers of scrutiny. See White, supra, at 53–57, 63–65. A deferential

test resembling what we now call “rational-basis review” was the first to emerge, establishing itself in the

aftermath of the New Deal (though rationality review

has its origins in the late 19th century). Id. at 68–69;

see also Thomas B. Nachbar, The Rationality of Rational Basis Review, 102 VA. L. REV. 1627, 1637

(2016). But it was not until mid-century, when the

Court began to apply a form of heightened scrutiny,

that an analysis recognizable as a tiers-of-scrutiny approach took shape. As Professor Stephen Siegel’s leading historical account has explained, the interest-balancing approach that ultimately developed into the

strict-scrutiny test “was established in First Amendment litigation in the late 1950s and early 1960s.”

11

Stephen A. Siegel, The Origin of the Compelling State

Interest Test and Strict Scrutiny, 48 AM. J. LEGAL

HIST. 355, 361 (2006).

At that time, this Court was divided on freespeech issues between the First Amendment minimalists (Justices Frankfurter, Harlan, and Clark) who

were inclined to “balance” the interest in free expression against the government’s countervailing interests in suppressing it, and the First Amendment absolutists (Justices Black and Douglas) who sought to

enforce the Free Speech Clause’s protections categorically. Id. at 361–62. Significantly, the “compelling-interest” standard was pioneered by the minimalists,

who saw it as a means of balancing away the Free

Speech Clause’s command that “Congress shall make

no law . . . abridging the freedom of speech.” U.S.

CONST. amend. I (emphasis added). The tiers of scrutiny were thus born as a means to evade the categorical language of the Free Speech Clause, not to faithfully implement it.

The notion that the government may justify infringing a constitutional right if it has a “compelling”

interest first appeared in Justice Frankfurter’s concurrence in Sweezy v. New Hampshire, 354 U.S. 234

(1957), a case overturning the conviction of a New

Hampshire college professor for refusing to answer

questions during a state investigation of subversive

activities. In cases involving academic freedom, Justice Frankfurter wrote, the government may act only

“for reasons that are exigent and obviously compelling.” Id. at 262 (Frankfurter, J., concurring). And

12

while the 1957 decision in Sweezy was a victory for

First Amendment rights during the Red Scare, Justice

Frankfurter’s formulation was swiftly embraced by

his fellow minimalists on the Court as a means of upholding restrictions on free expression. Justice Clark’s

1959 opinion for the Court in Uphaus v. Wyman, for

example, upheld the contempt conviction of the director of a leftist summer camp for refusing to cooperate

in a similar state legislative investigation, reasoning

that “the governmental interest in self-preservation is

sufficiently compelling to subordinate the interest in

associational privacy” of suspected subversives. 360

U.S. 72, 81 (1959).

In 1962, however, the First Amendment tide

turned, due to a series of membership changes on the

Court that gave the pro-speech block a working majority. Siegel, supra, at 375. For contingent and

largely political reasons, the task of reorienting the

Court’s First Amendment doctrine fell to Justice

Brennan. Id. Justice Brennan spurned the categorical

approach advocated by Justice Black, instead latching

on to Justice Frankfurter’s “compelling-interest” formulation as a way of bridging the gap between the

Court’s various factions. Id.

The key move came in NAACP v. Button, 371

U.S. 415 (1963), a case involving an attempt by Virginia officials to use state legal-ethics laws to prevent

the NAACP’s lawyers from engaging in school-desegregation litigation in the commonwealth. While conceding that Virginia had a “valid . . . interest” in regulating the practice of law within its borders, Justice

13

Brennan wrote for the Court’s new pro-speech majority that the “decisions of this Court, have consistently

held that only a compelling state interest . . . can justify limiting First Amendment freedoms.” Id. at 438,

439. And while this compelling-interest formulation

was the same one used by Justices Frankfurter, Harlan, and Clark to allow speech regulations only a few

years earlier, Justice Brennan had poured new wine

into the old wineskin: henceforth, the compelling-interest test would become known as one of the most exacting tests in constitutional law.

Justice Brennan’s 1963 opinion in Sherbert v.

Verner, 374 U.S. 398 (1963), adopted the same analysis under the Free Exercise Clause. His decision in

Shapiro v. Thompson, 394 U.S. 618 (1969), employed

the test to invalidate welfare statutes in Connecticut

and the District of Columbia on equal-protection

grounds. And, as Professor Siegel recounts, “[f]rom

there its spread within equal protection analysis, and

throughout general legal consciousness, was rapid.”

Siegel, supra, at 391. The tiers-of-scrutiny approach

had gone from a formulation designed by judicial minimalists to uphold restrictions on free expression to

the Warren Court’s dominant method of protecting

certain constitutional rights. Yet, this revolution in

constitutional law happened not for reasons of principle and fidelity to the original meaning of the Constitution; it happened for reasons of contingency and political expediency.

14

II.

The tiers of scrutiny are inconsistent with

the Constitution’s original meaning.

For those who believe that the Constitution

should be interpreted according to the meaning it had

when it was enacted, this history of the tiers of scrutiny provides a good and sufficient reason for rejecting

them (leaving aside considerations of stare decisis, see

infra, Part IV); see also Whole Woman’s Health, 136 S.

Ct. at 2327 (Thomas, J., dissenting) (arguing that “using made-up tests to displace longstanding national

traditions as the primary determinant of what the

Constitution means” is “illegitimate[e]” (quotation

marks omitted)). While it is logically conceivable that

the original meaning of one or more constitutional

provisions could itself require a balancing approach

akin to the tiers of scrutiny—and some scholars have

made arguments along these lines in the Free Exercise Clause context, see, e.g., Stephanie H. Barclay,

The Historical Origins of Judicial Religious Exemptions, 96 NOTRE DAME L. REV. 55, 113–17 (2020)—two

features of the historical account just described make

it unlikely that the tiers-of-scrutiny analysis is part of

the original meaning of the Constitution.

First, this mode of judicial analysis was generally

not applied at the Founding. Indeed, strict scrutiny

did not come into being until 1957. Rational-basis review can be traced back earlier, but no one seriously

contends that rationality review would constitute a viable framework for constitutional analysis on its own,

without strict or intermediate scrutiny available to

provide more meaningful review in at least some

15

cases. And while a full discussion of the scholarly debate about the role of judicial balancing under the

original meaning of the Free Exercise Clause is beyond the scope of this brief, suffice it to say that those

scholars who believe that the Clause sometimes requires judicially enforced exemptions from generally

applicable laws do not appear to have uncovered any

Founding-Era judicial decisions applying anything

recognizable as the modern tiers of scrutiny.4 Second,

the tiers of scrutiny developed as a political expedient,

not as a good-faith effort to recover the original

4 The bulk of the evidence cited by Professor Barclay consists of cases engaged in statutory interpretation, not judicial review under the Free Exercise Clause (or State analogues). Barclay, supra, at 73–90. That is not surprising. As a majority of this

Court has recognized, there are very few Founding-Era cases

that could potentially shed light on the original meaning of the

Free Exercise Clause, let alone what test is appropriate under

that Clause. See Fulton v. City of Philadelphia, 593 U.S. ___, 141

S. Ct. 1868, 1882–83 (2021) (Barrett, J., joined by Kavanaugh,

J., concurring); id. at 1907–11 (Alito, J., joined by Thomas and

Gorsuch, J.J., concurring in the judgment). That being said, it is

important to note that the question of whether the Free Exercise

Clause sometimes requires exemptions from generally applicable

laws is distinct from the question of whether the tiers of scrutiny—or some other legal test—is the appropriate way to determine when such exemptions are required. Compare id. at 1894–

1912, with id. at 1924–25. The analysis here is concerned only

with the latter question, and this Court could readily conclude

that Employment Division v. Smith, 494 U.S. 872 (1990), should

be overruled without adopting the tiers of scrutiny as the replacement test. See Fulton, 141 S. Ct. at 1882–83 (Barrett, J., concurring) (suggesting dissatisfaction with replacing Smith with a

strict-scrutiny test).

16

understanding of the constitutional text. As Professor

Fallon has said, strict-scrutiny analysis—and therefore tiers-of-scrutiny analysis—lacks “any foundation

in the Constitution’s original understanding.” Fallon,

supra, at 1268.

To be sure, sometimes courts develop jurisprudential tests that, while not required by the original

meaning of the Constitution, are nonetheless consistent with it and help courts apply the Constitution

to specific fact patterns. Some originalist scholars–

such as Keith Whittington, Randy Barnett, and Lawrence Solum—call this form of constitutional analysis

“constitutional construction” and distinguish it from

the process of uncovering the original meaning of the

text, which they call “constitutional interpretation.”

See, e.g., Randy E. Barnett, Interpretation and Construction, 34 HARV. J.L. PUB. POL’Y 65, 65–70 (2011);

Lawrence B. Solum, The Interpretation-Construction

Distinction, 27 CONST. COMMENT. 95, 95–96 (2010);

KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION 5–14 (2001). It is theoretically possible that the

tiers of scrutiny might thus potentially be justified as

a permissible “construction” of the constitutional

rights they are used to enforce. One scholar has made

something akin to this type of argument in the Free

Speech context, while acknowledging that the tiers of

scrutiny are inconsistent with the conception of the judicial role at the Founding. See, e.g., Jud Campbell,

Natural Rights and the First Amendment, 127 YALE

L.J. 246, 314–17 (2017).

17

The problem with this attempted justification of

the tiers-of-scrutiny framework, however, is that this

framework cannot be a permissible construction of the

Constitution because it is inconsistent with the original meaning of the text. It is in the very nature of the

tiers of scrutiny that they contradict the constitutional provisions in question, by purporting to find

those rights “outweighed” by the government’s interest in violating them. See Philip Hamburger, The Inversion of Rights and Power, 63 BUFF. L. REV. 731, 753

(2015) (“[W]hen a judge evaluates a government interest, he is deciding whether the interest of the government in its power trumps the interest of individuals

in their rights.”).

While tiers-of-scrutiny analysis is not a naked

“cost-benefit” test, it is a balancing inquiry, even if the

balancing is structured into distinct stages. See Heller

II, 670 F.3d at 1281 (Kavanaugh, J., dissenting)

(“From the beginning, it was recognized that [the

strict and intermediate scrutiny] tests were balancing

tests.”). After all, scrutiny analysis generally begins

only after the court has determined that the challenged restriction does indeed fall within the scope of

the constitutional right in question. Thus, the avowed

purpose of the inquiry—even in the form of rationalbasis review—is generally to determine when that

right has been validly “outweighed” by the government’s interest in suppressing it. And there lies the

root difficulty, for the Constitution does not provide a

ranking or hierarchy of constitutional values and governmental interests, many of which appear

18

incommensurable. The scrutiny analysis therefore

asks judges to impose on the Constitution a hierarchy

of values and interests that—due to their incommensurability—is not objectively justifiable.

At this point, some may try to turn this interestbalancing defect into a justification. They may argue

that, if Chief Justice Marshall was right that the Constitution must be “adapted to the various crises of human affairs,” McCulloch, 4 Wheat. (17 U.S.) at 415, it

cannot be ruled out that some of these crises will be so

acute that the government’s compelling interest in

taking action outweighs the value of any constitutional restrictions that stand in the way. Similarly,

looking at the point from the other direction, some

scholars have argued that “balancing” is a necessary

component of a just regime, since it is “a principle

and . . . goal of constitutional government” that “larger

harms imposed by government should be justified by

more weighty reasons.” Vicki C. Jackson, Constitutional Law in an Age of Proportionality, 124 YALE L.J.

3094, 3098 (2015).

What unites these two arguments for judicial

balancing is a kind of perfectionism, a view of constitutionalism in which every constitutional dispute has

a happy-ever-after ending that can be discovered by

judges on a case-by-case basis. But this impulse is contrary to the very nature of American-style constitutionalism. The basic premise of a written constitution,

at least in the American tradition, is that due to some

combination of uncertainty about the nature and content of justice, disagreement over its demands, or

19

skepticism that future government actors can be

trusted to pursue them, those future officials must be

bound by an external, objectively discernible set of restraints that are established in advance. A theory of

constitutional practice that promises happy-ever-after endings in every case—and empowers judges to

achieve them via balancing tests—is in fundamental

conflict with such a regime. As Professor Henry Monaghan observed four decades ago, we do not have “a

perfect constitution” that always achieves the normatively best outcome. Henry P. Monaghan, Our Perfect

Constitution, 56 N.Y.U. L. REV. 353 (1981). A society

capable of drafting and implementing such a document would have no need for it.

Some have sought to avoid these objections by

constructing an alternative theory of the tiers of scrutiny, casting the inquiry as a means of preventing the

government from pretextually pursuing constitutionally illegitimate motives or purposes. Thus, Professor

John Hart Ely famously justified strict scrutiny under

the Equal Protection Clause as “a way of ‘flushing out’

unconstitutional motivation.” JOHN HART ELY, DEMOCRACY & DISTRUST 146 (1980). Then-Professor Kagan offered a similar theory in the First Amendment

context. Elena Kagan, Private Speech, Public Purpose:

The Role of Governmental Motive in First Amendment

Doctrine, 63 U. CHI. L. REV. 413, 453 (1996). As Ely

explained, the idea is that the “interest” prong prevents the government from justifying the challenged

law by pointing to a sanitized goal “so unimportant

that you have to suspect it’s a pretext that didn’t

20

actually generate the choice.” ELY, supra, at 148. The

“tailoring” prong ensures that the interest put forward by the government was its genuine motivation—

on the theory that “[t]here is only one goal the classification is likely to fit” closely enough to pass muster,

“and that is the goal the legislators actually had in

mind.” Id. at 146.

But even assuming that the original meaning of

constitutional provisions like the Second Amendment

proscribe certain motives (rather than certain actions

or outcomes), this theory cannot justify the tiers of

scrutiny. Even if application of the scrutiny tests will

occasionally succeed in “smoking out” illicit government motives for the reasons Ely described, the inquiry is remarkably ill-suited to the task. In many

cases, the tiers of scrutiny will result in the invalidation of laws that were in fact motivated by the genuine

desire to pursue legitimate objectives the government

believed were compelling. And in many others, illicitly

motivated laws will nonetheless be upheld because

the government chose its pretext carefully, enacting a

law that passes the scrutiny gauntlet despite its sinister purpose. In the end, if certain constitutional

rights really do forbid otherwise-valid government action motivated by illegitimate purposes, the way to enforce them is to ask whether a challenged government

act is motivated by an illegitimate purpose. The courts

already directly inquire whether the government has

acted for impermissible purposes in many contexts.

See, e.g., Village of Arlington Heights v. Metropolitan

Hous. Dev. Corp., 429 U.S. 252, 265–68 (1977). There

21

is no reason to resort to the tiers of scrutiny as an illsuited way of asking the same question.

III. The tiers of scrutiny are indeterminate and

manipulable.

As just explained, because the tiers of scrutiny,

by their very design, result in underenforcing the originally understood scope of constitutional rights in

some cases, the familiar scrutiny framework cannot

be squared with the Constitution’s original meaning.

But one need not be an originalist to reject the tiers of

scrutiny; one who interprets the Constitution according to other available interpretive methodologies

can—and should—just as readily condemn them. That

is because the tiers of scrutiny lack the essential characteristic of any jurisprudential test whose aim is the

faithful application of the law: serving as a meaningful guide to legal analysis. Instead, each step of the

scrutiny process is marked by indeterminacy and manipulability. See Whole Woman’s Health, 136 S. Ct. at

2327 (Thomas, J., dissenting) (“If our recent cases illustrate anything, it is how easily the Court tinkers

with levels of scrutiny to achieve its desired result.”).

Consider, as Professor Fallon has correctly

pointed out, that “there will often be an important

level-of-generality question involving purportedly

compelling governmental interests.” Fallon, supra, at

1323. For example, in the statutory context, the Religious Freedom Restoration Act requires courts to apply a form of strict scrutiny to federal laws that substantially burden the exercise of religion. 42 U.S.C.

22

§ 20000bb-1(b). When the Obama Administration was

defending its contraception mandate, it consistently

described the governmental interest in broad terms,

such as “public health” and “gender equality.” See

Brief for the Petitioners 46–51, Burwell v. Hobby

Lobby Stores, Inc., No. 13-354 (U.S. Jan. 10, 2014).

These formulations made the government’s interest

sound more compelling than those framed at a lower

level of generality, such as “providing free contraceptives to employees of certain types of employers offering certain types of health-insurance plans.”

The manipulability of the first step of the analysis, in turn, infects the second step’s tailoring requirement. If the government’s interest is stated broadly,

there will likely be more ways of achieving that interest than if it is stated narrowly, which makes it less

likely that the government can show the necessary

tailoring of its interest to its chosen means. The contraception mandate again provides a case in point. If

the government’s interest had been stated narrowly—

providing free contraceptives to employees of a particular type of employer under particular health-insurance plans—the mandate would have had a better

(though perhaps not convincing) claim to being the

only way to accomplish it. (Of course, this raises a separate manipulability problem: defining the interest to

precisely match the chosen means.) But cast at a relatively high level of generality (though more specific

than some of the extremely broad interests the Government asserted in that case)—as achieving broader

access to contraceptives—it seemed likely that the

23

interest could have been achieved in ways other than

forcing employers with religious objections to provide

the contraceptives for free. Indeed, this is precisely

why this Court held in Burwell v. Hobby Lobby Stores,

Inc. that the contraception mandate failed strict scrutiny as applied to closely held corporations with religious objections. 573 U.S. 682, 728–32 (2014).

Thus, in many cases, to decide the level of generality is to decide the case. Yet, as Professor Fallon has

observed, despite the importance of this level-of-generality inquiry, this Court has never explained how

the level of generality of the government’s interest is

to be determined across cases. Fallon, supra, at 1325,

1336. The failure to provide an answer to this critical

question is no surprise: There is no good answer.5

Courts forced to choose between characterizing the

government’s interest as “public health,” “increased

access to contraceptives,” or “free access to a particular type of contraceptive for employees with a certain

5 The level-of-generality problem may not be as severe in

the context of a general rule that is subject to case-by-case exemptions, because the existence of the provision authorizing exemptions may rule out the broadest characterization of the interests behind the general rule, as inconsistent with the availability

of exemptions. See Fulton, 141 S. Ct. at 1881–82 (rejecting a

broad characterization of the interest at issue). Similarly, the

level-of-generality problem may not be as severe where the text

of a statute or constitutional provision requires that the governmental interest explain why a specific individual must suffer an

infringement on statutory or constitutional rights. See Hobby

Lobby, 573 U.S. at 726–27 (same).

24

type of insurance” simply have no principled way of

making the determination in most cases.

But even if there was a principled way of resolving these questions, the tiers of scrutiny would still

pose intractable problems for the rule of law. How, for

instance, is a court to determine whether an interest

is important or compelling? The courts have tended to

treat the question as a normative one reserved for

their own judgment, but that makes the constitutionality of governmental action dependent on each

judge’s own subjective assessment of questions that

can only be described as quintessentially political.

And when the meaning of constitutional provisions

rests on a judge’s controversial political decisions, the

courts become no more than a continuation of politics

by other means. This makes the resolution of controversial constitutional questions difficult for the losing

side to accept, since the judicial decision rests on political judgments rather than law, which undermines

the very purpose of American-style constitutionalism.

When we reach the tailoring prong, the situation

does not improve. Whether a challenged law will, in

fact, achieve its stated goal is often a contested empirical question, as is the question of whether there are

other, less-restrictive means of achieving the same

end. Frequently, these empirical questions will depend on assumptions, analyses, and judgments that

are extraordinarily complex and controversial. That

does not mean that there is no right answer to such

questions, but there is something farcical about a federal judge hearing testimony about fraught and

25

quintessentially legislative questions and pronouncing his conclusions as settled fact. As Justice Alito observed in his dissent in United States v. Windsor,

“[o]nly an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously.” 570 U.S. 744, 816 n.7 (2013) (Alito,

J., dissenting).

The Circuit Court decisions applying intermediate scrutiny to “proper cause”-type license-to-carry restrictions perfectly illustrate the point. The First Circuit upheld Massachusetts’s restriction based in part

on its assessment of social-science “studies indicating

that states with more restrictive licensing schemes for

the public carriage of firearms experience significantly lower rates of gun-related homicides and other

violent crimes.” Gould v. Morgan, 907 F.3d 659, 675

(1st Cir. 2018). The Fourth Circuit similarly upheld

Maryland’s licensing requirements based on its resolution of the empirical question whether, on net, the

State’s restriction “strikes an appropriate balance between granting handgun permits to those persons

known to be in need of self-protection and precluding

a dangerous proliferation of handguns on the streets

of Maryland.” Woolard v. Gallagher, 712 F.3d 865, 881

(4th Cir. 2013). But the social-science evidence bearing on these questions simply does not speak with one

voice, see Moore v. Madigan, 702 F.3d 933, 937–39

(7th Cir. 2012), making any determination of the actual likely effects of “proper-cause” restrictions on

rates of violent crime, on the one hand, and effective

self-defense, on the other, extraordinarily complex.

26

And even if those respective probabilities could

be accurately determined, could it really be said that

a court would then be in a position to decide whether

any given restriction strikes the “appropriate balance,” Woolard, 712 F.3d at 881, between public safety

and the constitutional right to armed self-defense outside the home? To ask that question is to see that it

begets no judicially ascertainable answer. Indeed,

Justice Breyer recognized this problem in his dissenting opinion in McDonald, noting that assessing firearms restrictions based on balancing tests “requires

finding answers to complex empirically based questions of a kind that legislatures are better able than

courts to make.” 561 U.S. at 922 (Breyer, J., dissenting). But that is precisely why McDonald—in line

with Heller’s rejection of interest-balancing tests—reaffirmed that balancing tests are inappropriate in the

Second Amendment context. See id. at 790–91 (plurality).

To be sure, interpreting a constitutional provision according to its text and history carries difficulties of its own, as does discerning how to apply the

original meaning of a provision in modern circumstances. See, e.g., Kyllo v. United States, 533 U.S. 27

(2001). But even acknowledging those difficulties

(which can easily be overstated), they are incapable of

justifying resort to the tiers of scrutiny. As noted

above, courts generally turn to a scrutiny analysis

only after they have determined that the challenged

restriction indeed burdens conduct within the scope of

the relevant constitutional guarantee. The doctrinal

27

approach adopted in the Second Amendment context

by virtually every Court of Appeals, for instance,

places the scrutiny inquiry in the second place of a

two-pronged inquiry that begins with a determination

of “the scope of the Second Amendment’s protections”

based on “a textual and historical analysis.” Teixeira

v. County of Alameda, 873 F.3d 670, 682 (9th Cir.

2017). The choice is thus not one between a fraught

textual-and-historical inquiry, on the one hand, and a

fraught empirical-cum-balancing inquiry, on the

other. The choice is whether to layer the subjective

balancing inquiry on top of an initial inquiry into the

Constitution’s textual and historical scope.

IV. The tiers of scrutiny should not be extended into the Second Amendment context.

Even if the argument against the tiers of scrutiny

is strong, there remains the question of what role

stare decisis should play in considering whether to

abandon them. That question would likely be harder

for some justices than others. Compare Knick v. Township of Scott, 588 U.S. ___, 139 S. Ct. 2162, 2178 (2019)

(looking to “the quality of [the precedent’s] reasoning,

the workability of the rule it established, its consistency with other related decisions . . . and reliance

on the decision”), with Gamble v. United States, 587

U.S. ___, 139 S. Ct. 1960, 1984 (2019) (Thomas, J.,

concurring) (urging that “if the Court encounters a decision that is demonstrably erroneous . . . the Court

should correct the error, regardless of whether other

factors support overruling the precedent”). Yet, even

28

for those who take a more robust approach to stare decisis, there are strong reasons why the judicial hesitancy to overrule precedent should not stand in the

way of rethinking the role of the tiers of scrutiny,

given their manipulability, their history, and the lack

of any significant reliance interest in their continued

application (as opposed to the reliance interest that

may exist in the individual decisions the courts have

reached under the tiers-of-scrutiny rubric). See Alicea

& Ohlendorf, supra, at 81–83. As the Chief Justice has

observed, the tiers of scrutiny “just kind of developed

over the years as sort of baggage that the First

Amendment picked up,” Argument Transcript, District of Columbia v. Heller 44:18–21, No. 07-290 (U.S.

Mar. 18, 2008), which is hardly the description of a

constitutional analysis that merits retention under

stare decisis principles.

Fortunately, however, in this case the question

whether stare decisis justifies the continued application of the tiers of scrutiny does not even arise. For the

question here is not whether to continue applying the

tiers-of-scrutiny framework to Second Amendment

challenges; it is whether to extend that framework to

this context. About that question, the rule of stare decisis, if it has anything to say at all, counsels against

the tiers of scrutiny.

This Court’s decisions in District of Columbia v.

Heller, 554 U.S. 570 (2008), and McDonald v. City of

Chicago, 561 U.S. 742 (2010), plainly do not adopt any

tiers-of-scrutiny analysis in the Second Amendment

context—and indeed, as multiple Members of this

29

Court have explicitly or implicitly recognized, the best

reading of those cases is that they foreclose it. See

Rogers v. Grewal, 140 S. Ct. 1865, 1866–68 (2020)

(Thomas, J., joined by Kavanaugh, J., dissenting from

the denial of certiorari) (expressly arguing that Heller

and McDonald foreclose use of the tiers of scrutiny);

New York State Rifle & Pistol Ass’n v. City of New

York, 590 U.S. ___, 140 S. Ct. 1525, 1540–41 (2020)

(Alito, J., joined by Thomas and Gorsuch, JJ., dissenting) (describing Heller’s test as a historical test and

only considering the tiers of scrutiny in the alternative). After all, Heller makes clear that the Second

Amendment “elevates” the right to armed self-defense

“above all other interests,” such that infringements

upon that right may not be “subjected to a freestanding ‘interest-balancing’ approach.” 554 U.S. at 634–

35. And McDonald reaffirms that the Court “expressly

rejected the argument that the scope of the Second

Amendment right should be determined by judicial interest balancing.” 561 U.S. at 785 (plurality opinion).

As then-Judge Kavanaugh observed in his dissenting

opinion in Heller II, the exhaustive historical analyses

of Heller and McDonald show that the Second Amendment, when properly interpreted, requires that only

“traditional, ‘longstanding’ regulations” of specific

firearms or individuals be upheld as constitutional.

670 F.3d at 1270 (Kavanaugh, J., dissenting). Accordingly, whatever argument there may be for leaving

the tiers-of-scrutiny framework undisturbed in those

areas of the constitutional terrain where it has already put down roots, stare decisis provides no

30

argument for planting its seeds in the Second Amendment’s newly tilled doctrinal soil.

Nor would a refusal to extend the tiers of scrutiny

to this context make the Second Amendment a jurisprudential outlier. Indeed, it is the tiers of scrutiny

that are inconsistent with the approach the Court has

taken to many other provisions of the Bill of Rights.

As then-Judge Kavanaugh’s Heller II dissent also observed, “[s]trict and intermediate scrutiny tests are

not employed in the Court’s interpretation and application of many other individual rights provisions of

the Constitution.” Id. at 1283. From the Confrontation

Clause to the Establishment Clause, from the Fourth

Amendment to the right to a jury trial, the Court routinely strikes down—or sustains—challenged government restrictions without asking whether they are

tailored to achieving the government’s interests. See,

e.g., Town of Greece, N.Y. v. Galloway, 572 U.S. 565,

575–91 (2014); United States v. Jones, 565 U.S. 400,

404–11 (2012); Crawford v. Washington, 541 U.S. 36,

60–65 (2004); United States v. Gaudin, 515 U.S. 506,

509–19 (1995). Even under the First Amendment’s

Free Speech Clause—where the tiers of scrutiny first

emerged—a great many cases are decided without resort to any scrutiny analysis. See, e.g., Miami Herald

Pub. Co. v. Tornillo, 418 U.S. 241, 254–58 (1974);

Stanley v. Georgia, 394 U.S. 557, 564–68 (1969); Brandenburg v. Ohio, 395 U.S. 444, 447–48 (1969); New

York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964).

Moreover, in the context of those provisions already colonized by subjective balancing standards

31

akin to the tiers of scrutiny, the Court has recently

begun the process of incrementally reclaiming constitutional territory. Lemon v. Kurtzman, 403 U.S. 602

(1971), adopted a subjective, ahistorical test for some

Establishment Clause cases that has been subject to

relentless criticism from scholars and jurists ever

since. E.g., Lamb’s Chapel v. Center Moriches Union

Free Sch. Dist., 508 U.S. 384, 398–400 (1993) (Scalia,

J., dissenting); Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115, 118, 128–

31 (1992). But in recent years, the Court has begun to

roll back Lemon’s domain. In the recent decision in

American Legion v. American Humanist Association,

a majority of the Court rejected the applicability of the

Lemon test at least to cases involving “religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies,” relying instead on the

long tradition of accepting the constitutionality of

these religious references and images. 588 U.S. ___,

139 S. Ct. 2067, 2097 (2019) (Thomas, J., concurring);

accord id. at 2081–85 (plurality). The Court has thus

shown that it knows how to chip away at an ahistorical jurisprudential test and replace it, bit by bit, with

one grounded in the original meaning of the Constitution. It should not reverse course and extend the reach

of the ahistorical tiers of scrutiny to the Second

Amendment.

The short of the matter is this: the tiers of scrutiny are not grounded in the text or original meaning

of the Constitution; they were adopted for political

reasons; they are inherently manipulable and

32

indeterminate; they place judges in the position of

making controversial policy and political judgments;

and, at least in the context of the Second Amendment,

they have no refuge in stare decisis. This case presents

the Court with the opportunity to stop the spread of

this ahistorical and unmoored analysis to new constitutional contexts and, instead, to endorse a doctrinal

framework that looks to the Constitution’s text and

history in resolving Second Amendment challenges. It

should do so, and begin the process of eliminating the

scrutiny tests from constitutional jurisprudence for

good.

CONCLUSION

For these reasons, the Court should reverse the

judgment of the Second Circuit.

July 20, 2021

Respectfully submitted,

JOHN D. OHLENDORF

Counsel of Record

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

johlendorf@cooperkirk.com

Counsel for Amicus Curiae