Dueling Tests Yield Conflicting Conclusions About the District of Columbia's Gun Controls

Yesterday, as Damon Root noted, the U.S. Court of Appeals for the D.C. Circuit issued a ruling (PDF) that addresses the Second Amendment arguments against the gun law that the District of Columbia adopted after D.C. v. Heller, the 2008 Supreme Court decision that overturned its ban on keeping handguns or operable long guns in the home. The majority of the appeals court's three-judge panel upheld D.C.'s ban on "assault weapons" and magazines holding more than 10 rounds, along with its registration requirement for handguns. It drew no conclusions about the constitutionality of D.C.'s registration requirement for long guns or its onerous licensing and registration process (which includes various fees, five hours of training, multiple visits to government offices, fingerprinting, and recurring background checks), remanding those issues for further consideration by the district court. By contrast, dissenting Judge Brett Kavanaugh deemed all of these provisions unconstitutional.

The crucial difference between Kavanaugh and the judges in the majority (Douglas Ginsburg and Karen LeCraft Henderson) is the test they apply to determine whether a law violates the Second Amendment. All three judges agree that the highly deferential "reasonable-regulation test" urged by the District cannot be squared with the "fundamental" right to keep and bear arms recognized by the Supreme Court in Heller and in the 2010 decision McDonald v. Chicago (which held that the Second Amendment applies to state and local governments). Ginsburg and Henderson settle instead on "intermediate scrutiny" of the regulations challenged in this case, which requires that they be "substantially related to an important governmental objective." By comparison, "strict scrutiny" would demand that the regulations be "narrowly tailored" to further a "compelling governmental interest" and be the "least restrictive means" of doing so. Kavanaugh rejects both standards, arguing that Heller and McDonald bar any sort of balancing test, instead holding that "the scope of the right [to arms]" is "determined by text, history, and tradition."

In Heller the Supreme Court said certain "longstanding prohibitions," such as those banning "possession of firearms by felons and the mentally ill" or "the carrying of firearms in sensitive places," are "presumptively lawful." Hence the D.C. Circuit majority and Kavanaugh both consider the historical precedents for the District's regulations, coming to somewhat different conclusions. The Supreme Court also indicated that bans on "dangerous and unusual weapons" such as sawed-off shotguns are constitutional. All three D.C. Circuit judges agree that both high-capacity magazines and "assault weapons"—which under the District's law include specifically named models as well as guns with certain features, such as protruding pistol grips and thumbhole stocks on rifles—are "in common use" for "lawful purposes like self-defense," which implies that they do not fall into the "dangerous and unusual" category. For Kavanaugh, that is enough to conclude that the bans on high-capacity magazines and "assault weapons" violate the Second Amendment. But the majority adds a requirement that the prohibited items be "useful specifically for self-defense or hunting" (whatever that means), saying the evidence presented by the plaintiffs on that point is inadequate. "Even assuming [the bans] do impinge upon the right protected by the Second Amendment," Ginsburg and Henderson say, "we think intermediate scrutiny is the appropriate standard of review and the prohibitions survive that standard."

Whether these bans really are "substantially related to an important governmental objective," of course, is open to debate. But the decisive difference between the majority's test and Kavanaugh's is that the former allows "impingement" on Second Amendment rights if there is a good enough reason, while the latter stops after determining whether a specific right is covered by the amendment as it was originally understood. If so, the government may not violate that right, no matter how important or compelling its goal.

Even Kavanaugh, however, emphasizes that Heller "was not revolutionary in terms of its immediate real-world effects on American gun regulation." Rather, it "established that traditional and common gun laws in the United States remain constitutionally permissible," although "outliers" like D.C.'s laws and Chicago's handgun ban cannot pass muster.

More on "assault weapon" bans here. More on the implications of Heller here.