Second Amendment

Supreme Court Should Clarify Second Amendment Test

Challenge to ban on interstate handgun sales would be a good vehicle.

|The Volokh Conspiracy |


Today I filed an amicus brief in support of the cert. petition in Mance v. Whitaker. The case is a challenge to the federal ban on interstate handgun sales. But more importantly, it is a good vehicle for the Court to clarify how lower courts should review Second Amendment challenges.

Background: In 1968, the federal Gun Control Act banned interstate retail handgun sales. The statute also banned interstate retail long gun sales, except for contiguous states that enacted legislation authorizing such sales. In 1986, Congress passed the Firearms Owner's Protection Act, which relegalized interstate long sales, provided that the sale complies with the laws of both states.

For purposes of these federal laws, the District of Columbia is treated like a state. There are no gun stores in the District. In order to acquire a handgun, a D.C. resident must visit a store in another state, and pay for the gun there. Then, the store will ship the handgun to the one person in Washington, D.C., who is allowed to transfer the handgun to the D.C. resident. The man holds a Federal Fireams License (FFL), and operates out of a tiny office in the D.C. police building. He has no inventory, and charges a $125 fee for processing the transfer.

Case history: Alan Gura, winning attorney in the Heller case, brought a suit against the interstate sales ban in federal district court in Texas. Plaintiffs are a husband and wife who live in D.C., plus the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA).

The district court applied strict scrutiny, and held that the sales ban violates the Second Amendment. A Fifth Circuit panel reversed. A petition for rehearing en banc was rejected by an 8 to 7 vote.

Amicus brief: The amicus brief was written by Colorado attorney Joseph Greenlee and me. Amici are ten law professors who teach and write on the Second Amendment. Most of them have been cited by the Supreme Court, and they are oft-cited by lower courts as well. The professors are: VC's Randy Barnett (Georgetown), Royce Barondes (Missouri), Robert Cottrol (George Washington), Nicholas Johnson (Fordham),
Nelson Lund (George Mason), Joyce Malcolm (George Mason), George Mocsary (Southern Illinois), Joseph Olson (Mitchell Hamline), Glenn Reynolds (Tennessee), and Gregory Wallace (Campbell). Organizational amici are the Independence Institute, where I work, and the Millennial Policy Center, a think tank where Greenlee is a Fellow.

The brief addresses a problem that has been discussed in a number of previous cert. petitions: many lower courts have been defying Heller. The amicus brief addresses the problem with a broad and systematic review of doctrinal problems and conflicts in the lower courts. Here is the Summary of Argument:

Over a decade after this Court's decision in District of Columbia v. Heller, lower courts are struggling to interpret and apply it.

Lower courts disagree over what test to apply to Second Amendment challenges. Although nearly every federal circuit court has adopted the Two-Part Test, many judges—in the Fifth Circuit and elsewhere—believe the Text, History, and Tradition Test is more appropriate. As they point out, the Text, History, and Tradition Test is the one used in Heller and McDonald v. City of Chicago.

The Two-Part Test is an interest-balancing test; such a test was expressly rejected in Heller and McDonald. It meshes poorly with Heller's list of presumptively lawful gun laws and has created much confusion.

Some major lower court cases have used the Two-part Test to treat the Second Amendment as a second-class right. They defy Heller by using a rational basis test for laws against law-abiding firearms owners and gun stores. They allow the government to prevail on thin or conclusory evidence. They apply a feeble version of heightened scrutiny that does not consider less burdensome alternatives. Each of these problems is manifest in the opinions below in this case.

Assorted lower courts expressly hew to the narrowest potential interpretation of the Second Amendment, pending further precedent from this Court. Development of Second Amendment jurisprudence is abrogated without additional guidance by this Court.

This Court should grant certiorari to state the appropriate test and to clarify issues within that test.

The government's response brief is due January 22, so if cert. were granted, the case would likely be heard in the Fall of 2019.