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.
Supreme Court briefJul 20, 2021
Ask Donna
What actually matters in this document.
Text
No. 20-843
IN THE
Supreme Court of the United States
________________
NEW YORK STATE RIFLE & PISTOL ASSOCIATION, 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 THE CATO INSTITUTE AS AMICUS
CURIAE IN SUPPORT OF PETITIONERS
_________________________________________________
July 20, 2021
Ilya Shapiro
Counsel of Record
Trevor Burrus
Spencer Davenport
CATO INSTITUTE
1000 Mass. Ave., NW
Washington, DC 20001
(202) 842-0200
ishapiro@cato.org
i
QUESTION PRESENTED
Whether the State of New York’s denial of a
petitioner’s application for concealed-carry licenses
for self-defense violated the Second Amendment.
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ........................................ i
TABLE OF AUTHORITIES .................................... iii
INTEREST OF AMICUS CURIAE .......................... 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ....................................................... 1
ARGUMENT ............................................................. 4
I.
LOWER COURTS HAVE CONTINUOUSLY
IGNORED HELLER AND MCDONALD .......... 4
II. LOWER COURTS’ INTEREST-BALANCING
TESTS CONTRAVENE HELLER AND ITS
PROGENY .......................................................... 6
A. A Minority of Courts Have Followed Heller
and Use Only Text, History, and Tradition . 7
B. Most Courts Have Adopted a Two-Step
Balancing Test That Has Diluted the
Second Amendment ...................................... 9
C. Heller’s List of “Presumptively Lawful”
Measures Has Encouraged Lower Courts
to Flout the Second Amendment ................ 16
D. The Slipshod Way Courts Have
Approached the Second Amendment Has
Left a Jursprudence of Doubt ..................... 23
III. LAWS INFRINGING ON THE RIGHT TO
KEEP AND BEAR ARMS REQUIRE A
MEANINGFUL STANDARD OF REVIEW
THAT ESCHEWS BALANCING TESTS ........ 25
CONCLUSION ........................................................ 29
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Ass’n of N.J. Rifle & Pistol Clubs Inc. v. Att’y Gen.
N.J., 974 F.3d 237 (3d Cir. 2020) (en banc) ........... 8
Ass’n of N.J. Rifle & Pistol Clubs v. New Jersey,
910 F.3d 106 (3d Cir. 2018) ...................... 12, 15, 26
Binderup v. Att’y Gen.,
836 F.3d 336 (3d Cir. 2016) (en banc) .................. 23
Bonidy v. U.S. Postal Serv.,
790 F.3d 1121 (10th Cir. 2015) ............................ 27
Burnham v. Superior Court of Cal.,
495 U.S. 604 (1990) ................................................ 2
Caetano v. Massachusetts, 136 S. Ct. 1027 (2016) .... 3
Dearth v. Lynch, 791 F.3d 32 (D.C. Cir. 2015) .......... 6
District of Columbia v. Heller,
554 U.S. 570 (2008) ....................................... passim
Drake v. Filko,
724 F.3d 426 (3d Cir. 2014) ........................... passim
Duncan v. Becerra, 970 F.3d 1133 (9th Cir. 2020).... 9
Edenfield v. Fane, 507 U.S. 761 (1993) ................... 13
Ezell v. City of Chicago,
651 F.3d 684 (7th Cir. 2011) .................2, 10, 13, 15
Flick v. Att’y Gen.,
812 F. Appx. 974 (11th Cir. 2020) ........................ 20
Friedman v. City of Highland Park,
784 F.3d 406 (7th Cir. 2015) ......................... passim
Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018)....... 24
iv
Hamilton v. Pallozzi, 848 F.3d 614 (4th Cir. 2017) 20
Harley v. Wilkinson, 988 F.3d 766 (4th Cir. 2021) . 21
Heller v. District of Columbia,
670 F.3d 1244 (D.C. Cir. 2011)........................... 7, 8
Hightower v. City of Boston,
693 F.3d 61 (1st Cir. 2012) ..................................... 6
Holloway v. Att’y Gen.,
948 F.3d 164 (3d Cir. 2020) .................................. 27
In re O’Connor,
585 N.Y.S.2d 1000 (N.Y. Cty. Ct. 1992)................. 2
In re United States,
578 F.3d 1195 (10th Cir. 2009) ............................ 20
Jackson v. City & Cty. of San Francisco,
746 F.3d 953 (9th Cir. 2014) ......................... passim
Kachalsky v. Cty. of Westchester,
701 F.3d 81 (2d Cir. 2012) ............................. passim
Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) ............ 8
Kolbe v. Hogan,
849 F.3d 114 (4th Cir. 2017) (en banc) ................ 11
Mance v. Sessions, 896 F.3d 390 (5th Cir. 2018) ...... 8
McDonald v. City of Chicago,
561 U.S. 742 (2010) ....................................... passim
Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) .. 2, 8
N.Y. State Rifle & Pistol Ass’n v. New York City,
140 S. Ct. 1525 (2020) ........................................ 3, 4
N.Y. State Rifle & Pistol Ass’n v. Cuomo,
804 F.3d 242 (2d Cir. 2015) ............................ 11, 12
Newdow v. Peterson, 753 F.3d 105 (2d Cir. 2014) ... 22
v
NRA of Am., Inc. v. BATFE,
700 F.3d 185 (5th Cir. 2012) .................... 12, 18, 21
NRA of Am., Inc. v. Swearingen, No. 4:18cv137MW/MAF, 2021 U.S. Dist. LEXIS 117837
(N.D. Fla. June 24, 2021) ........................... 9, 18, 24
Oyebanji v. Gonzales, 418 F.3d 260 (3d Cir. 2005) . 23
Pena v. Lindley, 898 F.3d 969 (9th Cir. 2018) ........ 13
People v. Williams, 2011 IL App (1st) 091667-B
(Ill. App. Ct. Dec.15, 2011) ..................................... 5
Peruta v. California, 137 S. Ct. 1995 (2017) ........... 25
Peruta v. Cty. of San Diego, 742 F.3d 1144 ............... 8
Piszczatoski v. Filko,
840 F. Supp. 2d 813 (D.N.J. 2012) ....................... 15
Planned Parenthood v. Casey, 505 U.S. 833 (1992) 24
Schad v. Borough of Mt. Ephraim,
452 U.S. 61 (1981) ................................................ 15
Schrader v. Holder, 704 F.3d 980 (D.C. Cir. 2013) . 22
Schwab v. Crosby, 451 F.3d 1308 (11th Cir. 2006) . 23
Silvester v. Becerra, 138 S. Ct. 945 (2018) .......... 3, 25
Silvester v. Harris,
843 F.3d 816 (9th Cir. 2016) ...............13, 14, 17, 26
State v. Knight, 241 P.3d 120 (Kan. Ct. App. 2010) . 5
Stimmel v. Sessions, 879 F.3d 198 (6th Cir. 2018) . 27
Teixeira v. Cty. of Alameda,
873 F.3d 670 (9th Cir. 2017) (en banc) .... 13, 14, 26
Tyler v. Hillsdale Cty. Sheriff’s Dep’t,
775 F.3d 308 (6th Cir. 2014) .................................. 9
vi
Tyler v. Hillsdale Cty. Sheriff’s Dep’t,
837 F.3d 678 (6th Cir. 2016) ............................... 21
Ullmann v. United States, 350 U.S. 422 (1956) ...... 25
United States v. Barton,
633 F.3d 168 (3d Cir. 2011) .................................. 20
United States v. Bena,
664 F.3d 1180 (8th Cir. 2011) .................. 10, 16, 19
United States v. Bogle,
717 F.3d 281 (2d Cir. 2013) ............................ 20, 22
United States v. Booker,
644 F.3d 12 (1st Cir. 2011) ................................... 18
United States v. Carpio-Leon,
701 F.3d 974 (4th Cir. 2012) ................................ 19
United States v. Chester,
628 F.3d 673 (4th Cir. 2010) .......................... 10, 18
United States v. Chovan,
735 F.3d 1127 (9th Cir. 2013) ........................ 13, 26
United States v. Decastro,
682 F.3d 160 (2d Cir. 2012) .................................. 15
United States v. Dugan,
657 F.3d 998 (9th Cir. 2011) ................................ 19
United States v. Frazier,
314 F. Appx. 801 (6th Cir. 2008) .......................... 22
United States v. Gaudin,
28 F.3d 943 (9th Cir. 1994) .................................. 23
United States v. Greeno,
679 F.3d 510 (6th Cir. 2012) ................................ 10
United States v. Huitron-Guizar,
678 F.3d 1164 (10th Cir. 2012) ............................ 19
vii
United States v. Jimenez,
895 F.3d 228 (2d Cir. 2018) .................................... 9
United States v. Joos,
638 F.3d 581 (8th Cir. 2011) ................................ 22
United States v. Marlow,
278 F.3d 581 (6th Cir. 2002) ................................ 23
United States v. Marzzarella,
614 F.3d 85 (3d Cir. 2010) .............................. 10, 16
United States v. Masciandaro,
638 F.3d 458 (4th Cir. 2011) ......................... passim
United States v. McCane,
573 F.3d 1037 (10th Cir. 2009) ............................ 22
United States v. Moore,
666 F.3d 313 (4th Cir. 2012) ................................ 22
United States v. Reese,
627 F.3d 792 (10th Cir. 2010) .............................. 12
United States v. Rozier,
598 F.3d 768 (11th Cir. 2010) .............................. 17
United States v. Scroggins,
599 F.3d 433 (5th Cir. 2010) ................................ 20
United States v. Skoien,
614 F.3d 638 (7th Cir. 2010) (en banc) ......... passim
United States v. Weaver, No. 2:09-cr-00222, 2012
U.S. Dist. LEXIS 29613
(S.D. W. Va. Mar. 7, 2012) ................................... 16
United States v. White,
593 F.3d 1199 (11th Cir. 2010) ............................ 19
United States v. Yancey,
621 F.3d 681 (7th Cir. 2010) ................................ 19
viii
Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State,
454 U.S. 464 (1982) .............................................. 25
Ward v. Rock Against Racism,
491 U.S. 781 (1989) .............................................. 26
Washington v. Glucksberg, 521 U.S. 702 (1997) ..... 25
Williams v. State, 10 A.3d 1167 (Md. 2011) .............. 5
Wrenn v. District of Columbia, 864 F.3d 650 (D.C.
Cir. 2017) .............................................................. 24
Wynne v. Town of Great Falls,
376 F.3d 292 (4th Cir. 2004) ................................ 23
Other Authorities
Allen Rostron, Justice Breyer’s Triumph in the
Third Battle over the Second Amendment,
80 Geo. Wash. L. Rev. 703 (2012) ........................ 22
Brief of Petitioners, Friedman v. City of Highland
Park, cert. denied, 577 U.S. 1039 (2015)
(No. 15-133)............................................................. 2
David Kopel & Joseph Greenlee, The “Sensitive
Places” Doctrine: Locational Limits on the Right
to Bear Arms, 13 Charleston L. Rev. 203 (2018) . 21
Eric Ruben & Joseph Blocher, From Theory to
Doctrine: An Empirical Analysis of the Right
to Keep and Bear Arms After Heller,
67 Duke L.J. 1433 (2018) ............................... 11, 16
1
INTEREST OF AMICUS CURIAE 1
The Cato Institute was established in 1977 as a
nonpartisan public policy foundation dedicated to
advancing the principles of individual liberty, free
markets, and limited government. Cato’s Robert A.
Levy Center for Constitutional Studies works to
restore limited constitutional government, which is
the foundation of liberty. Toward those ends, Cato
publishes books and studies, conducts conferences,
and produces the annual Cato Supreme Court Review.
This case interests Cato because it concerns the
individual right to armed self-defense; its resolution
should begin to flesh out the constitutional contours
of this much-maligned fundamental right.
INTRODUCTION AND
SUMMARY OF ARGUMENT
It has been more than a decade since this Court
affirmed the right of individuals to keep firearms for
the purpose of self-defense. District of Columbia v.
Heller, 554 U.S. 570 (2008). That message appears not
to have reached many lower courts. Instead, courts
around the country have upheld virtually every
restriction on keeping or bearing arms, short of a
complete ban of all arms in the home.
New York is among the last states in which the
right to bear arms remains discretionary. Under New
York’s regime, law-abiding citizens must demonstrate
“proper cause” for carrying a handgun in public.
1 Rule 37 statement: All parties were timely notified and
consented to the filing of this brief. No part of this brief was
authored by any party’s counsel, and no person or entity other
than amicus funded its preparation or submission.
2
Kachalsky v. Cty. of Westchester, 701 F.3d 81, 84 (2d
Cir. 2012). Good moral character plus the desire to
exercise an enumerated constitutional right is not
sufficient to meet the “proper cause” threshold. In re
O’Connor, 585 N.Y.S.2d 1000, 1003 (N.Y. Cty. Ct.
1992). Living or working in an area with a high crime
rate is also insufficient. Kachalsky, 701 F.3d at 86–87.
The Second Circuit’s treatment of the Second
Amendment is emblematic of the way lower courts
have dispensed with right-to-bear-arms claims.
Although lower courts are bound by “not only the
result but also those portions of the opinion necessary
to that result,” Burnham v. Superior Court of Cal.,
495 U.S. 604, 613 n.2 (1990) (plurality opinion), lower
courts have abandoned Heller’s history-based inquiry.
Instead, they have adopted an interest-balancing test,
even though this Court clearly repudiated this
approach. Heller, 554 U.S. at 634 (“We know of no
other enumerated constitutional right whose core
protection has been subjected to a freestanding
‘interest-balancing’ approach.”).
The balancing inquiry that many circuits use
diverges from circuit to circuit and from panel to
panel. The Seventh Circuit alone has offered up four
distinct tests. Brief of Petitioners at 36, Friedman v.
City of Highland Park, cert. denied, 577 U.S. 1039
(2015) (No. 15-133); see Friedman v. City of Highland
Park, 784 F.3d 406 (7th Cir. 2015); Moore v. Madigan,
702 F.3d 933 (7th Cir. 2012); Ezell v. City of Chicago,
651 F.3d 684 (7th Cir. 2011); United States v. Skoien,
614 F.3d 638 (7th Cir. 2010) (en banc). Although they
differ in their approaches, the cases tend to share
similar outcomes: millions of law-abiding Americans
are denied their constitutional rights.
3
Despite this Court’s claim that the Second
Amendment is not “a second-class right,” McDonald
v. City of Chicago, 561 U.S. 742, 780 (2010) (plurality
opinion), its inaction has contributed to the Second
Amendment’s demise. It’s no secret that many federal
courts have engaged in systematic resistance to
Heller and McDonald. See N.Y. State Rifle & Pistol
Ass’n v. New York City, 140 S. Ct. 1525, 1527 (2020)
(Alito, J., joined by Thomas & Gorsuch, JJ.,
dissenting) (“[T]he lower courts have decided
numerous cases involving Second Amendment
challenges to a variety of federal, state, and local
laws. Most have failed. We have been asked to review
many of these decisions, but until this case, we denied
all such requests.”); Silvester v. Becerra, 138 S. Ct. 945
(2018) (Thomas, J., dissental) (the Ninth Circuit’s
“deferential analysis was indistinguishable from
rational-basis review. And it is symptomatic of the
lower courts’ general failure to afford the Second
Amendment the respect due an enumerated
constitutional right”); Caetano v. Massachusetts, 136
S. Ct. 1027, 1033 (2016) (Alito, J., concurring)
(“Although the Supreme Judicial Court [of
Massachusetts] professed to apply Heller, each step of
its analysis defied Heller’s reasoning.”). Yet this Court
has declined opportunity after opportunity to step in
and correct the lower courts.
The Court should use this case as a concrete
example of the proper and required standards for
analyzing Second Amendment claims and respecting
constitutional rights. The lack of clarity around the
history of longstanding provisions, the scope of the
Second Amendment, and the appropriate standard of
review left lower courts with a great deal of discretion.
4
Clear ground rules will enable lower courts to develop
a coherent and consistent approach to the array of
issues that will continue to arise under the Second
Amendment. Heller engaged in an informed analysis
based on constitutional text, history, and tradition.
The Court should now reaffirm and elaborate that
standard for lower courts to follow.
ARGUMENT
I. LOWER COURTS HAVE CONTINUOUSLY
IGNORED HELLER AND MCDONALD
Heller was “this Court’s first in-depth examination
of the Second Amendment.” Heller, 554 U.S. at 635.
Even though the Court found that this provision
guarantees a core individual right to possess a
firearm for self-defense, it did not purport to “clarify
the entire field” of Second Amendment jurisprudence.
Id. Nor did it prescribe a standard of review for
evaluating Second Amendment claims.
In leaving key questions open, the hope was that
lower courts would define the scope of permissible
regulations. Thirteen years after Heller, we can see
that they have failed in that task. N.Y. State Rifle &
Pistol Ass’n, 140 S. Ct. at 1527 (Alito, J., joined by
Thomas & Gorsuch, JJ., dissenting).
After Heller and McDonald, courts have faced
numerous challenges to federal, state, and local
firearm laws. With minimal guidance, they have
largely ignored Heller’s holding and methodology.
Instead, lower courts have opted for the familiar
balancing tests to determine whether a particular law
is constitutional. In many cases, like this one, these
tests are used to uphold severe restrictions on the
5
rights of law-abiding citizens that would
unthinkable in any other constitutional context.
be
In McDonald, the Court “held that the Second
Amendment protects the right to keep and bear arms
for the purpose of self-defense.” 561 U.S. at 749–50.
The holding is not limited to the home. Instead,
McDonald characterized the D.C. ban on defensive
home handguns as an example of the types of laws
that violate the fundamental right to self-defense.
But many courts have ignored this reading. Some
state courts have openly declared they will not extend
Heller beyond its narrow facts, absent further action
by this Court. In Illinois, the court of appeals
announced that “both Heller and McDonald made
clear that the only type of firearms possession they
were declaring to be protected under the Second
Amendment was the right to possess handguns in the
home for self-defense purposes.” People v. Williams,
2011 IL App (1st) 091667-B, ¶ 11 (Ill. App. Ct. Dec.15,
2011). Kansas echoed that holding, saying that the
Court “was drawing a narrow line regarding the
violations related solely to use of a handgun in the
home for self-defense purposes.” State v. Knight, 241
P.3d 120, 133 (Kan. Ct. App. 2010). And finally,
Maryland’s high court asserted that “[i]f the Supreme
Court . . . meant its holding to extend beyond home
possession, it will need to say so more plainly.”
Williams v. State, 10 A.3d 1167, 1177 (Md. 2011).
Some federal courts have shown a similar
resistance to building on Heller. They see the Second
Amendment as “a vast terra incognita that courts
should enter only upon necessity and only then by
small degree.” United States v. Masciandaro, 638 F.3d
6
458, 475 (4th Cir. 2011). Addressing a ban on firearms
in national parks, the Fourth Circuit explained that
it is “prudent to await direction from the Court itself.”
Id. Other courts have voiced similar reservations in
resolving Heller’s unresolved questions. See, e.g.,
Dearth v. Lynch, 791 F.3d 32, 41 (D.C. Cir. 2015)
(Griffith, J., concurring) (“I would extend Heller no
further unless and until the Supreme Court does so”);
Hightower v. City of Boston, 693 F.3d 61 (1st Cir.
2012) (“[W]e should not engage in answering the
question of how Heller applies to possession of
firearms outside of the home”); Friedman, 784 F.3d at
412 (“Whether those limits should be extended is in
the end a question for the Justices.”); Skoien, 614 F.3d
at 640 (“We do not think it profitable to parse . . .
passages of Heller as if they contained an answer to
the question . . . we must confront.”). Unless this
Court acts, many lower courts will continue to restrict
the Heller decision to its facts.
II. LOWER COURTS’ INTEREST-BALANCING
TESTS CONTRAVENE HELLER AND ITS
PROGENY
The courts that have been willing to evaluate
Second Amendment claims have strayed from this
Court’s methodological analysis. Gone is the
historical test and back is the familiar judgeempowering balancing test.
It would be one thing if the circuits agreed on one
test. But the methods courts have taken vary from
circuit to circuit and panel to panel. Perhaps the only
consistency among the courts is their deference to the
legislative bodies that enact the restrictive gun laws.
7
At every step, the government can justify firearm
regulations. The government wins if it can show the
regulation is longstanding, or if it shows the law one
of those identified by Heller as presumptively lawful.
In some cases, a challenged restriction might not be
among those listed in Heller but still be found as
presumptively lawful—because Heller noted that its
list was not exhaustive. The government also can win
if it can overcome the applied level of scrutiny. While
some courts require the government to provide
meaningful evidence to support its assertions, others
require only that the government show it has an
important interest—which it always does in uttering
the magic words, “public safety.”
A. A Minority of Courts Have Followed
Heller and Use Only Text, History, and
Tradition
To find that the Second Amendment protects an
individual right to self-defense, this Court looked to
the text and structure of the Second Amendment as
well as an exhaustive survey of its history. The Court
also looked to tradition—post-ratification history—to
see how scholars, courts, and legislators interpreted
the Second Amendment. 2 This Court argued that a
history-focused method “is much less subjective, and
intrudes much less upon the democratic process” than
an interest-balancing test. McDonald, 561 U.S. at 804
(Scalia, J., concurring).
2 While tradition is a critical tool of constitutional interpretation,
tradition inconsistent with the “original meaning of the
constitutional text obviously cannot overcome or alter that text.”
Heller v. District of Columbia, 670 F.3d 1244, 1274 n.6 (D.C. Cir.
2011) (Kavanaugh, J., dissenting) .
8
Only a minority of judges have followed this
historical approach. In Madigan, a Seventh Circuit
panel conducted a textual and historical analysis to
invalidate Illinois’s ban on carrying firearms in
public. 702 F.3d 933. See also Peruta v. Cty. of San
Diego, 742 F.3d 1144, 1166–75, rev’d 824 F.3d 919
(9th Cir. 2016) (en banc) (invalidating a San Diego
policy restricting the right to bear arms in public
based on an “analysis of text and history,” and
expressly declining to “apply a particular standard of
heightened scrutiny.”).
Other judges have employed a historical analysis
of the Second Amendment, albeit in dissent. Writing
in the second iteration of Heller, then-Judge
Kavanaugh rejected the panel majority’s balancing
test, opting instead for a test based on text, history,
and tradition. Heller v. District of Columbia, 670 F.3d
1244, 1271 (D.C. Cir. 2011) (Kavanaugh, J.,
dissenting) (“Heller and McDonald leave little doubt
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.”). Then-Judge Barrett likewise argued that
courts should look to “history and tradition” to
determine whether there is precedent for the
restriction at issue. Kanter v. Barr, 919 F.3d 437, 452
(7th Cir. 2019) (Barrett, J., dissenting). See also Ass’n
of N.J. Rifle & Pistol Clubs Inc. v. Att’y Gen. N.J., 974
F.3d 237, 251 (3d Cir. 2020) (en banc) (Matey, J.,
dissenting) (arguing that text, history, and tradition
was the proper test); Mance v. Sessions, 896 F.3d 390,
394 (5th Cir. 2018) (Elrod, J., dissental) (same).
Finally, some courts acknowledge the problems of
using a balancing test but argue they are bound to
9
keep applying it. See, e.g., Duncan v. Becerra, 970
F.3d 1133, 1143 n.6 (9th Cir. 2020) (acknowledging
criticism of the two-step test but arguing the panel
was bound by Ninth Circuit precedent to apply it);
Tyler v. Hillsdale Cty. Sheriff’s Dep’t, 775 F.3d 308,
319 (6th Cir. 2014), vacated en banc, No. 13-1876,
2015 U.S. App. LEXIS 6638 (6th Cir. Apr. 21, 2015)
(“There is significant language in Heller itself . . . that
would indicate that lower courts should not conduct
interest balancing or apply levels of scrutiny,” but
applying the two-step test because of circuit
precedent.); NRA of Am., Inc. v. Swearingen, No.
4:18cv137-MW/MAF, 2021 U.S. Dist. LEXIS 117837,
at *10 n.7 (N.D. Fla. June 24, 2021) (rejecting a “text,
history, and tradition analysis” because the court was
bound to “follow the two-step test as set out by the
Eleventh Circuit.”).
B. Most Courts Have Adopted a Two-Step
Balancing Test That Has Diluted the
Second Amendment
Although every circuit has purportedly applied
heightened scrutiny to Second Amendment claims,
history and tradition have often taken a backseat to
policy concerns—undeterred by Heller’s proscription
of such an approach.
Circuit courts have largely adopted a two-step
approach. The court first determines whether the
restricted activity is protected by the Second
Amendment. See, e.g., United States v. Jimenez, 895
F.3d 228, 232 (2d Cir. 2018). If it is not, the inquiry
ends and the law is upheld. If the regulation does
burden protected conduct, then the court moves to
10
step two, where it applies means-end scrutiny to
determine whether the law survives. Id.
This test is especially problematic because it
bears no resemblance to the heightened scrutiny
applied to laws infringing other fundamental rights.
Each step in the process dilutes the Second
Amendment protections.
1. Courts do not know how much weight
history should be given in determining
whether a regulation burdens the “core” of
the Second Amendment.
The first step asks whether the challenged law
targets conduct within the scope of the Second
Amendment’s
protections.
In
making
this
determination, reviewing courts typically engage in a
textual and historical inquiry. But they don’t agree on
how much weight history should be given.
Some courts use the first step as a significant
threshold before engaging in any constitutional
scrutiny. Ezell, 651 F.3d at 700–03; United States v.
Greeno, 679 F.3d 510, 518 (6th Cir. 2012); United
States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010).
Other courts take an intermediate approach and look
to see if the regulation is analogous to another
restriction that has historical roots. See, e.g., United
States v. Marzzarella, 614 F.3d 85, 91 (3d Cir. 2010);
United States v. Bena, 664 F.3d 1180, 1183 (8th Cir.
2011). And finally, some courts don’t use history at
all. Eric Ruben & Joseph Blocher, From Theory to
Doctrine: An Empirical Analysis of the Right to Keep
and Bear Arms After Heller, 67 Duke L.J. 1433, 1492
(2018) (finding that of the more than 1,100 post-Heller
cases, only 29 cite any source from before 1791 and
11
only 42 any source from 1791–1868); Drake v. Filko,
724 F.3d 426, 431 (3d Cir. 2014) (“Appellants contend
also that ‘text, history, tradition and precedent all
confirm that individuals enjoy a right to publicly
carry arms for their defense.’ At this time, we are not
inclined to address this contention by engaging in a
round of full-blown historical analysis.”); Kachalsky,
701 F.3d at 91 (declining to engage in a historical
analysis as the “history and tradition” of “the
meaning of the Amendment” is “highly ambiguous”).
2. Courts have shrunk the “core” of the Second
Amendment, so regulations are evaluated
under a less-exacting form of scrutiny.
When many courts find that the Second
Amendment is implicated in a given claim, they then
consider whether the regulation at issue burdens the
core of the constitutional rights or rests at its
periphery. To determine what level of scrutiny to
apply, courts typically will “consider the nature of the
conduct being regulated and the degree to which the
challenged law burdens the right.” Kolbe v. Hogan,
849 F.3d 114, 133 (4th Cir. 2017) (en banc) (citation
omitted). Most courts agree that any law that burdens
core Second Amendment rights receives strict
scrutiny. E.g., Masciandaro, 638 F.3d at 471 (“We
assume that any law that would burden the
‘fundamental,’ core right of self-defense in the home
by a law-abiding citizen would be subject to strict
scrutiny.”). But both the Ninth and Second Circuits
have applied intermediate scrutiny to laws that
“burden[]
the
core
of
the
Second
Amendment.” Jackson v. City & Cty. of San
Francisco, 746 F.3d 953, 963–65 (9th Cir. 2014); New
York State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d
12
242, 258 (2d Cir. 2015). For less severe burdens, the
courts apply a standard that resembles intermediate
scrutiny. Skoien, 614 F.3d at 641–42; United States v.
Reese, 627 F.3d 792, 801 (10th Cir. 2010). But the
Second Circuit applies rational basis for “[l]aws that
neither implicate the core protections of the Second
Amendment nor substantially burden their exercise
do not receive heightened scrutiny.” N.Y. State Rifle
& Pistol Ass’n, 804 F.3d at 258.
The search for the “core” of the Second
Amendment is designed to discount the rights that
lay at the “periphery.” There is no mechanism for
determining what is a part of the core and what is a
part of the periphery. Instead, many judges seemingly
use their preferences to determine what the core
should be. As seen in the section above, many lower
courts have reduced Heller’s core holding to say that
the Second Amendment only guarantees the right of
self-defense in the home. See, e.g., Masciandaro, 638
F.3d at 467 (“[T]he right to keep and use firearms in
self-defense in the home.”). By shrinking the core of
the Second Amendment, courts are then able to apply
a less exacting level of scrutiny to a given law.
3. Almost every gun regulation is upheld under
a form of watered-down scrutiny.
At the final step, courts apply the proper level of
scrutiny to the regulation. Although they claim to be
applying intermediate scrutiny to non-core Second
Amendment regulations, their tests resemble rational
basis review, in which the government always wins.
See, e.g., Ass’n of N.J. Rifle & Pistol Clubs v. New
Jersey, 910 F.3d 106 (3d Cir. 2018); Jackson, 746 F.3d
953; Kachalsky, 701 F.3d 81; Friedman, 784 F.3d 406;
13
NRA of Am., Inc. v. BATFE, 700 F.3d 185 (5th Cir.
2012).
Under intermediate scrutiny, the government
must show that the regulation is substantially related
to an important governmental interest. Some courts
have thus demanded “actual, reliable evidence”
substantiating the government’s claim. See Ezell, 651
F.3d at 709. When analyzing both the genuineness of
the purported dangers and the effectiveness of the
proposed restrictions in alleviating those dangers,
this Court has further emphasized the need for
precision rather than vague generalities. Edenfield v.
Fane, 507 U.S. 761, 774 (1993).
But time and again, lowers courts have simply
deferred to the government’s “policy judgment” about
how “the state can best protect public safety.” Drake,
724 F.3d at 439; see also Pena v. Lindley, 898 F.3d
969, 981–82 (9th Cir. 2018); Silvester v. Harris, 843
F.3d 816, 827 (9th Cir. 2016); Kachalsky, 701 F.3d at
97–99. Although the right is “fundamental,” the
perceived danger of guns leads courts to defer to the
legislature in making policy judgments. Often, all the
government needs to show is that there’s a logical and
plausible basis for the law’s benefits.
The Ninth Circuit is perhaps the most notorious
for applying a rational basis-type test, going out of its
way to bless the most restrictive gun regulations.
Jackson, 746 F.3d 953; Silvester v. Harris, 843 F.3d
816, cert. denied 138 S. Ct. 945 (2018); Teixeira v. Cty.
of Alameda, 873 F.3d 670 (9th Cir. 2017) (en banc).
Although the Ninth Circuit previously acknowledged
that “rational basis review is not appropriate,” United
States v. Chovan, 735 F.3d 1127, 1137 (9th Cir. 2013),
14
it more recently declared that heightened scrutiny is
appropriate only if the law “meaningfully” burdens
the right to bear arms. Teixeira, 873 F.3d at 680.
While this Court struck down a requirement “that
firearms in the home be rendered and kept inoperable
at all times,” as “mak[ing] it impossible for citizens to
use them for the core lawful purpose of self-defense,”
Heller, 554 U.S. at 630, the Ninth Circuit upheld a
nearly functionally identical law that required all
firearms to be “stored in a locked container or disabled
with a trigger lock.” Jackson, 746 F.3d at 958. It did
not matter that the law was overinclusive or that it
made it more difficult for citizens to use firearms for
self-defense and burdened “the core of the Second
Amendment right.” Id. at 964. The court still applied
intermediate scrutiny. See also Silvester, 843 F.3d at
828 (upholding a 10-day waiting-period for all
firearms purchases as applied to those who already
own firearms, under the guise of public safety).
Three years after Jackson, the Ninth Circuit
upheld a county zoning ordinance that forbids a
firearms business from being “within five hundred
feet of a ‘[r]esidentially zoned district; elementary,
middle or high school; pre‐school or day care center;
other firearms sales business; or liquor stores or
establishments in which liquor is served.’” Teixeira,
873 F.3d at 675 n.2. Instead of applying a weak form
of intermediate scrutiny, the court applied rational
basis review. While the county did not provide any
evidence that the regulation was permissible at the
adoption of the Second Amendment, the “majority
went to bat for the County, unearthing its own
historical narrative to that effect.” Id. at 699 (Bea, J.,
dissenting) (cleaned up) (cert denied). For the Ninth
15
Circuit, the Second Amendment is not burdened until
a plaintiff can prove that they are unable to obtain a
firearm somewhere else. Id. at 680. But see Ezell, 651
F.3d at 697 (“In the First Amendment context, the
Supreme Court long ago made it clear that ‘one is not
to have the exercise of his liberty of expression in
appropriate places abridged on the plea that it may be
exercised in some other place.’ The same principle
applies here.” (quoting Schad v. Borough of Mt.
Ephraim, 452 U.S. 61, 76–77 (1981)). Having this
strict view of what it is to burden the Second
Amendment allows regulations to continue to escape
meaningful review.
Unfortunately, the Ninth Circuit is not alone in
applying a form of deferential scrutiny to gun
regulations. See, e.g., Ass’n of New Jersey Rifle &
Pistol Clubs, 910 F.3d at 126 (Bibas, J., dissenting)
(criticizing the majority and five other circuits that
“err in subjecting the Second Amendment to different,
watered-down rules and demanding little if any
proof.”); Kachalsky, 701 F.3d at 93 (allowing state
officials to refuse handgun-carry permits solely
because they oppose the idea of ordinary citizens’
carrying arms for protection); United States v.
Decastro, 682 F.3d 160, 166 (2d Cir. 2012)
(determining that “marginal, incremental, or even
appreciable restraint[s] on the right to keep and bear
arms” necessitate nothing more than rational basis
review); Friedman, 784 F.3d at 412 (upholding a ban
on assault weapons under intermediate scrutiny
because, while it may not reduce the overall
dangerousness of crime, it “may increase the public’s
sense of safety.”); Piszczatoski v. Filko, 840 F. Supp.
2d 813, 829 (D.N.J. 2012), aff’d sub nom, Drake v.
16
Filko, 724 F.3d 426 (3d Cir. 2013) (“[T]his Court does
not intend to place a burden on the government to
endlessly litigate and justify every individual
limitation on the right to carry a gun in any location
for any purpose.”). Although the just-listed cases are
among the worst offenders in applying a deferential
form of scrutiny, such decisions can be found in every
circuit. See, e.g., Ruben & Blocher, supra, at 1473
(finding that of the more than 1,100 gun cases since
Heller, only 9 percent have been successful). Such
treatment of the Second Amendment led one court to
quip that it “says more about the courts than the
Second Amendment.” United States v. Weaver, No.
2:09-cr-00222, 2012 U.S. Dist. LEXIS 29613, at *14
n.7 (S.D. W. Va. Mar. 7, 2012).
C. Heller’s List of “Presumptively Lawful”
Measures Has Encouraged Lower Courts
to Flout the Second Amendment
In Heller, this Court indicated that “longstanding
prohibitions on the possession of firearms by felons
and the mentally ill, or laws forbidding the carrying
of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions
and qualifications on the commercial sale of arms”
were “presumptively lawful.” Heller, 554 U.S. at 626–
27. Unsurprisingly, that list of regulations has
become the go-to citation for gun-control advocates.
But courts have not been completely certain of
how “presumptively lawful” measures fit in the twopart test. Some courts look to apply presumptively
lawful measures at step one. See, e.g., Marzzarella,
614 F.3d at 91; Bena, 664 F.3d at 1183; Jackson, 746
F.3d at 960. Others apply it at step two. Masciandaro,
17
638 F.3d at 472; United States v. Rozier, 598 F.3d 768,
771 (11th Cir. 2010) (per curiam). Courts are also split
on whether a litigant can rebut the presumption.
Whether at step one or two, they have struggled with
what makes a particular firearm restriction
“longstanding” and “presumptively lawful.”
1. Courts have expanded the “presumptively
lawful” exceptions in Heller to include laws
not on the original list.
Courts have enthusiastically embraced Heller’s
list of “presumptively lawful” regulations. They have
especially focused on the footnote that said the list
“does not purport to be exhaustive,” Heller, 554 U.S.
at 627 n.26, using that line to approve not just of
longstanding restrictions but laws that might be
analogized to something on Heller’s list.
To determine whether a regulation is
longstanding, courts consult history. In blessing a law
like the one here, a Third Circuit panel determined
that the regulation was longstanding because New
York had required “proper cause” to carry a handgun
since 1913, and New Jersey’s “justifiable need”
standard had antecedents dating to 1924. Drake, 724
F.3d at 432–34; see also Silvester, 843 F.3d at 823–25
(finding that a California statute from 1923 was
sufficiently longstanding). Yet, as one judge noted,
laws dating to the 1920s may seem to belong to
a “historical tradition” of regulation. But they
were enacted more than 130 years after the
states ratified the Second Amendment. Why
should regulations enacted 130 years after the
Second Amendment’s adoption (and nearly 60
years after the Fourteenth’s) have more
18
validity than those enacted another 90 years
later?
Friedman, 784 F.3d at 408.
Laws aligning neatly with those specifically
recited by the Heller majority have been upheld as
falling into Heller’s safe harbor. But even laws falling
outside that harbor have generally been found to be
longstanding without a “precise founding-era
analogue.” NRA, 700 F.3d at 196; see also Skoien, 614
F.3d at 641 (“We do take from Heller the message that
exclusions need not mirror limits that were on the
books in 1791.”). For all practical purposes,
presumptively lawful regulatory measures act as “a
kind of ‘safe harbor’ for unlisted regulatory
measures.” Chester, 628 F.3d at 679.
To determine whether a law is analogous to the
Heller list, the court identifies the governmental
interest at stake as well as the “contexts in which
those interests could be successfully invoked.”
Masciandaro, 638 F.3d at 469. In NRA v. BATFE, the
Fifth Circuit upheld a statute prohibiting licensed
firearms dealers from selling handguns to persons
between the ages of 18 and 20. The court reasoned
that the law is like “federal bans targeting felons and
the mentally ill” and wanting to “regulate certain
groups’ access to arms for the sake of public safety.”
700 F.3d at 205–06; see also Swearingen, 2021 U.S.
Dist. LEXIS 117837, at *38–39 (finding that a
prohibition on the sale of firearms to 18-to-20-yearolds are analogous to the restrictions on Heller’s list).
Courts have similarly analogized gun-possession
bans for felons to bans on those with domestic violence
misdemeanors. United States v. Booker, 644 F.3d 12,
19
24–25 (1st Cir. 2011) (“§922(g)(9) fits comfortably
among the categories of regulations that Heller
suggested would be ‘presumptively lawful.’”); United
States v. White, 593 F.3d 1199, 1206 (11th Cir. 2010)
(“We see no reason to exclude § 922(g)(9) from the list
of longstanding prohibitions on which Heller does not
cast doubt.”). They have also extended the Heller list
to people who unlawfully use or are addicted to drugs.
United States v. Dugan, 657 F.3d 998, 999–1000 (9th
Cir. 2011) (“Because Congress may constitutionally
deprive felons and mentally ill people of the right to
possess and carry weapons, we conclude that
Congress may also prohibit illegal drug users from
possessing firearms.”); United States v. Yancey, 621
F.3d 681, 684–85 (7th Cir. 2010) (“Keeping guns away
from habitual drug abusers is analogous to disarming
felons.”). And they have extended the Heller list to
persons subject to domestic-violence restraining
orders. Bena, 664 F.3d at 1184 (“Although persons
restricted by § 922(g)(8) need not have been convicted
of an offense involving domestic violence, this
statute—like prohibitions on the possession of
firearms by violent felons and the mentally ill—is
focused on a threat presented by a specific category of
presumptively dangerous individuals.”). Finally,
courts have extended the list to illegal aliens. E.g.,
United States v. Carpio-Leon, 701 F.3d 974 (4th Cir.
2012); United States v. Huitron-Guizar, 678 F.3d 1164
(10th Cir. 2012). Although many courts refuse to
extend Heller beyond its facts, they have no problem
extending its dicta to restrict the rights of millions.
20
2. Many courts treat the Heller list as
irrebuttable.
This Court described the Heller list of regulations
as “presumptively lawful.” In applying that list,
courts have been divided on whether the presumption
can be rebutted or not. The Third and Sixth Circuit
argue that once the government carries its burden of
proving that a certain law is “presumptively lawful,”
the burden of proof shifts to the party challenging the
law. United States v. Barton, 633 F.3d 168, 173 (3d
Cir. 2011) (“By describing the felon disarmament ban
as ‘presumptively’ lawful, the Supreme Court implied
that the presumption may be rebutted.”).
But many courts have turned “presumptively
lawful” into “conclusively lawful.” Heller, 554 U.S. at
627 n.26. The Second, Fourth, Fifth, Tenth, and
Eleventh Circuits do not allow the presumption to be
challenged. See United States v. Bogle, 717 F.3d 281,
281–82 (2d Cir. 2013) (upholding the felon firearm
ban simply by citing to Heller); United States v.
Scroggins, 599 F.3d 433, 451 (5th Cir. 2010) (rejecting
challenge to possession of firearms by a felon pointing
to Heller’s language); In re United States, 578 F.3d
1195, 1200 (10th Cir. 2009) (“We have already
rejected the notion that Heller mandates an
individualized inquiry concerning felons pursuant to
§ 922(g)(1).”); Flick v. Att’y Gen., 812 F. Appx. 974, 975
(11th Cir. 2020) (foreclosing as-applied challenges to
§ 922(g)(1)). And while the Fourth Circuit had
previously “recognized the possibility that an asapplied challenge to a felon disarmament law could
succeed in rebutting the presumption,” Hamilton v.
Pallozzi, 848 F.3d 614, 622–23 (4th Cir. 2017), it
switched to not allowing the presumption to be
21
rebutted. Id. at 626 (“[W]e simply hold that conviction
of a felony necessarily removes one from the class of
‘law-abiding, responsible citizens’ for the purposes of
the Second Amendment”); see also
Harley v.
Wilkinson, 988 F.3d 766, 769 (4th Cir. 2021) (refusing
to consider any individual characteristics in an asapplied challenge, instead focusing “entirely on the
statute itself and the evidence addressing the
statutory purpose and fit.”).
But a presumption is, by definition, rebuttable.
Accordingly, Heller “did not invite courts onto an
analytical off-ramp to avoid constitutional analysis.”
Tyler
v.
Hillsdale
Cty.
Sheriff’s
Dep’t,
837 F.3d 678, 686 (6th Cir. 2016).
3. Considering certain regulations to be
presumptively lawful is ahistorical and
leads to millions’ being deprived of their
Second Amendment rights.
The most striking part of the “presumptively
lawful” language is its inclusion in the historically
based inquiry in Heller, given that many of the
regulations on the list themselves are not
longstanding. Indeed, every one of the regulations the
Court listed were 19th- or 20th-century inventions.
See NRA, 700 F.3d at 196 (“Heller considered firearm
possession bans on felons and the mentally ill to be
longstanding, yet the current versions of these bans
are of mid–20th century vintage.”); Skoien, 614 F.3d
at 640 (“The first federal statute disqualifying felons
from possessing firearms was not enacted until
1938”); David Kopel & Joseph Greenlee, The
“Sensitive Places” Doctrine: Locational Limits on the
Right to Bear Arms, 13 Charleston L. Rev. 203 (2018),
22
https://tinyurl.com/y3ztcpg2 (finding little historical
precedent for sensitive place restrictions).
Some courts have recognized the ahistorical
origins of the list of presumptively lawful measures.
See, e.g., United States v. McCane, 573 F.3d 1037,
1049 (10th Cir. 2009). But many judges still use the
list to approve every sort of restriction, especially
felon-in-possession laws. Over and over, courts have
quickly brushed aside these claims by citing Heller.
Allen Rostron, Justice Breyer’s Triumph in the Third
Battle over the Second Amendment, 80 Geo. Wash. L.
Rev. 703, 729 (2012); see, e.g., Schrader v. Holder, 704
F.3d 980, 989–91 (D.C. Cir. 2013); Bogle, 717 F.3d at
281–82; United States v. Moore, 666 F.3d 313, 318–19
(4th Cir. 2012); United States v. Joos, 638 F.3d 581,
586 (8th Cir. 2011); United States v. Frazier, 314 F.
Appx. 801, 807 (6th Cir. 2008). The Tenth Circuit
remarked that “[g]iven the uncertain pedigree of felon
dispossession laws, though, the dictum sanctioning
their application while simultaneously sidestepping
the Second Amendment’s original meaning is odd.
One wonders, at least with regard to felon
dispossession, whether the Heller dictum has
swallowed the Heller rule.” McCane, 573 F.3d at 1049.
This Court’s confusing dictum has led many lower
courts to uphold extreme restrictions on firearm
ownership for nonviolent felons and other groups of
people. It is even more pressing that this Court
addresses the “presumptively lawful” language given
that recent Supreme Court dicta is generally
considered to be nearly as binding as the holding.
Newdow v. Peterson, 753 F.3d 105, 108 n.3 (2d Cir.
2014) (“[W]e have an obligation to accord great
deference to Supreme Court dicta.”) (cleaned up);
23
Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir.
2006) (“We have previously recognized that ‘dicta
from the Supreme Court is not something to be lightly
cast aside.’”); Oyebanji v. Gonzales, 418 F.3d 260,
264–65 (3d Cir. 2005) (“[A]s a lower federal court, we
are advised to follow the Supreme Court’s considered
dicta.”) (cleaned up); Wynne v. Town of Great Falls,
376 F.3d 292, 298 n.3 (4th Cir. 2004) (“[W]ith inferior
courts, like ourselves . . . carefully considered
language of the Supreme Court, even if technically
dictum, generally must be treated as authoritative.”)
(cleaned up); United States v. Marlow, 278 F.3d 581,
588 n.7 (6th Cir. 2002) (“Appellate courts . . . are
obligated to follow Supreme Court dicta, particularly
when there is no substantial reason for disregarding
it, such as age or subsequent statements undermining
its rationale.”); United States v. Gaudin, 28 F.3d 943,
956 n.2 (9th Cir. 1994) (“Even if it were dicta, we could
not lightly ignore it.”). Until this Court addresses
Heller’s “presumptively lawful” language, courts will
continue to apply it, no matter ahistorical it is.
D. The
Slipshod
Way
Courts
Have
Approached the Second Amendment Has
Left a Jurisprudence of Doubt
Although united in applying a two-step test,
circuits vary in their approaches. Consequently,
Second Amendment analysis “resembles a patchwork
quilt that largely reflects local custom.” Drake, 724
F.3d at 440 (Hardiman, J., dissenting). And while our
Founders designed our system to allow for a diverse
level of practices develop, it is unlikely that they
intended the Second Amendment to turn on judicial
vagaries. Binderup v. Att’y Gen., 836 F.3d 336, 372–
73 (3d Cir. 2016) (en banc) (Hardiman, J., concurring).
24
As this Court has remarked elsewhere: “Liberty finds
no refuge in a jurisprudence of doubt.” Planned
Parenthood v. Casey, 505 U.S. 833, 844 (1992).
This Court presumably hoped that the lower
courts would help define the scope of the Second
Amendment. In response, however, these courts have
developed a slipshod way of handling cases. The only
thing that they have in common is their need for
additional guidance. See Gould v. Morgan, 907 F.3d
659, 670 (1st Cir. 2018) (“Heller did not supply us with
a map to navigate the scope of the right of public
carriage for self-defense.”); Wrenn v. District of
Columbia, 864 F.3d 650, 655 (D.C. Cir. 2017) (“[T]he
Supreme Court has offered little guidance. . . . And by
its own admission, [Heller] manages to be mute on
how to review gun laws in a range of other cases.”);
Masciandaro, 638 F.3d at 475 (“This case underscores
the dilemma faced by lower courts in the post-Heller
world . . . we think it prudent to await direction from
the Court itself.”); Kachalsky, 701 F.3d at 89 (“What
we do not know is the scope of that right beyond the
home and the standards for determining when and
how the right can be regulated by a government. This
vast ‘terra incognita’ has troubled courts since Heller
was decided.”); Swearingen, 2021 U.S. Dist. LEXIS
117837, at *8 (“And when it comes to what test
applies, Heller is about as clear as the Suwannee
River,” which is a blackwater river in northern
Florida). Until this Court provides additional
guidance, lower courts will continue to limit Heller to
its facts and thus eviscerate the Second Amendment.
25
III. LAWS INFRINGING ON THE RIGHT TO
KEEP AND BEAR ARMS REQUIRE A
MEANINGFUL STANDARD OF REVIEW
THAT ESCHEWS BALANCING TESTS
The Second Amendment is not inferior to other
constitutional rights. Valley Forge Christian Coll. v.
Ams. United for Separation of Church & State, 454
U.S. 464, 484 (1982) (“[W]e know of no principled
basis on which to create a hierarchy of constitutional
values.”); Ullmann v. United States, 350 U.S. 422,
428–29 (1956) (“To view a particular provision of the
Bill of Rights with disfavor inevitably results in a
constricted application of it.”). Members of this Court
have continued to recognize that the Second
Amendment cannot be singled out for second-class
treatment. Silvester, 138 S. Ct. at 945 (Thomas, J.,
dissental) (“If a lower court treated another right so
cavalierly, I have little doubt that this Court would
intervene. But as evidenced by our continued inaction
in this area, the Second Amendment is a disfavored
right in this Court.”); Peruta v. California, 137 S. Ct.
1995, 1999 (2017) (Thomas, J., joined by Gorsuch, J.,
dissental) (“The Court’s decision to deny certiorari in
this case reflects a distressing trend: the treatment of
the Second Amendment as a disfavored right.”). To
the contrary, this Court has insisted that the Second
Amendment is “deeply rooted in this Nation’s history
and tradition” and is “among those fundamental
rights necessary to our system of ordered
liberty.” McDonald, 561 U.S. at 787, 778 (plurality)
(quoting Washington v. Glucksberg, 521 U.S. 702,
721 (1997)).
But by declining to answer key methodological
questions, the Court has allowed the Second
26
Amendment to be “singled out for special—and
specially unfavorable—treatment.” Id. at 745–46.
Lower courts use watered-down forms of intermediate
scrutiny that would be unimaginable if applied to
other rights. Compare Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989) (A First Amendment
restriction must be “‘narrowly tailored to serve a
significant
governmental
interest.’”
(citations
omitted)), with Silvester, 843 F.3d at 822–23 (citing
Chovan, 735 F.3d at 1139) (Second Amendment
restriction requires that “(1) the government’s stated
objective must be significant, substantial, or
important; and (2) there must be a ‘reasonable fit’
between the challenged regulation and the asserted
objective.”).
The denigration of the Second Amendment is
usually done in the name of public safety. The Second
Circuit claimed that if the First and Second
Amendments were treated equally, it “could well
result in the erosion of hard-won First Amendment
rights.” Kachalsky, 701 F.3d at 92. According to the
Ninth Circuit, a comparison between a gun seller and
a book seller was inapt because guns “change[] the
constitutional calculus.” Teixeira, 873 F.3d at 688.
The Third, Sixth, and Tenth Circuits also believe that
the Second Amendment can be treated as inferior,
because of its inherent dangers. Ass’n of N.J. Rifle &
Pistol Clubs, 910 F.3d at 124 n.28 (“While our Court
has consulted First Amendment jurisprudence
concerning the appropriate level of scrutiny to apply
to a gun regulation, we have not wholesale
incorporated it into the Second Amendment: the risk
inherent in firearms and other weapons distinguishes
the Second Amendment right from other fundamental
27
rights.”) (cleaned up); Stimmel v. Sessions, 879 F.3d
198, 206 (6th Cir. 2018) (“The risk inherent in
firearms distinguishes the right to keep and bear
arms from other fundamental rights that have been
held to be evaluated under a strict scrutiny test.”
(cleaned up); Bonidy v. U.S. Postal Serv., 790 F.3d
1121, 1126 (10th Cir. 2015) (contrasting bearing arms
with the right to marry). See also Holloway v. Att’y
Gen., 948 F.3d 164, 177 n.16 (3d Cir. 2020) (“[O]ur
precedent is cautious in applying the intermediate
scrutiny test used in First Amendment cases.”).
But the Bill of Rights is not an ordinal hierarchy,
with the Second Amendment occupying a spot one
place below the First in terms of importance. The
Framers were well aware of the “risk inherent in
firearms,” in the words of the Bonidy court, as much
as they were aware of the risks inherent in free
speech. Yet, on its face, the Constitution explicitly
protects both to the same degree.
Constitutional protections exist to guard against
the strong temptation to restrict certain conduct. The
Second Amendment, like the other Bill of Rights,
recognize the freedoms individuals have while
preventing government overreach. And each right
reflected a tradeoff by the Founders between freedom
and public safety. Heller, 554 U.S. at 634–35 (“The
very enumeration of the right takes out of the hands
of government . . . the power to decide on a case-bycase basis whether the right is really worth insisting
upon. . . . 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.”).
While lower courts recognize that other constitutional
28
rights outweigh public-safety considerations—most
notably, the Fourth Amendment—they have not done
so for the Second Amendment. McDonald, 561 U.S. at
783 (“The right to keep and bear arms . . . is not the
only constitutional right that has controversial public
safety implications. All of the constitutional
provisions that impose restrictions on law
enforcement and on the prosecution of crimes fall into
the same category.”).
Approving the two-step approach would only
guarantee continued chaos. What is needed is a clear
standard under which Americans have their rights
respected, while recognizing that no right is absolute.
To ensure that the Second Amendment is restored
to its place in the Bill of Rights, this Court should
direct lower courts to engage in informed analyses
based on constitutional text, history, and tradition.
One of the best aspects of our system of government
is that the scope of rights doesn’t change over time”;
it was fixed at the Founding and adjusted at the
“Second Founding,” the adoption of the post-Civil War
Amendments. Regardless of how public perception
changes, a right’s enumeration must stand for
something, as it “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.
A constitutional guarantee subject to future judges’
assessments of its usefulness is no constitutional
guarantee at all.” Heller, 554 U.S. at 634.
This is not to suggest that an approach based on
text, history, and tradition is an easy one to frame or
apply. See McDonald, 561 U.S. at 804 (Scalia, J.,
concurring) (“Historical analysis can be difficult; it
29
sometimes requires resolving threshold questions,
and making nuanced judgments about which
evidence to consult and how to interpret it.”). After all,
history and tradition show that states have adopted a
variety of gun regulations. But this Court is tasked
with the duty to decide what is right, not what is easy.
In so doing, lower courts will be able to evaluate
Second Amendment claims consistently while
affording them their proper respect.
CONCLUSION
For the foregoing reasons, and those stated by the
petitioners, this Court should reverse the Second
Circuit.
Respectfully submitted,
July 20, 2021
Ilya Shapiro
Counsel of Record
Trevor Burrus
Spencer Davenport
CATO INSTITUTE
1000 Mass. Ave., N.W.
Washington, D.C. 20001
(202) 842-0200
ishapiro@cato.org
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.