The Volokh Conspiracy

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The 2nd Circuit's second-class Second Amendment intermediate scrutiny


On Wednesday I examined two aspects of Monday's 2nd Circuit decision mostly upholding firearms and magazine bans in New York and Connecticut, in New York State Rifle & Pistol Assoc. v. Cuomo and Connecticut Citizens' Defense League v. Malloy. My previous article discussed the 2nd Circuit's Bizarro Second Amendment rule that guns which are less accurate, more uncomfortable, and harder to use enjoy greater constitutional protection than do better guns. The article also criticized the 2nd Circuit for refusing to follow the Supreme Court's Heller/McDonald methodology for reviewing arms bans. Today, I will examine the 2nd Circuit's creation of a second-class version of intermediate scrutiny for the Second Amendment.

In particular, the 2nd Circuit deviated from normal intermediate scrutiny in two major ways: First, the 2nd Circuit did not consider less restrictive alternatives. While normal intermediate scrutiny does not require the "least" restrictive alternative, it does require consideration of alternatives that burden substantially less of the right.

Second, the 2nd Circuit deviated from intermediate scrutiny by considering only the government's evidence, rather than both sides. The 2nd Circuit held that if the government produced sufficient evidence to support its rationale, then the government wins. The 2nd Circuit cited but did not follow the Supreme Court's City of Los Angeles v. Alameda Books; that case set up a three-stage process for consideration of evidence from both sides. Although the government's evidence might, in isolation, be considered persuasive, the government does not win if the other side produces enough evidence to "cast doubt" on the government claims.

Although the 2nd Circuit purported to be deferring to "fact-finding" and "predictive judgments" of "the legislature," the court was in fact deferring to the New York attorney general. The New York ban was jammed through the legislature under an "emergency" procedure that prevented legislative hearings and fact-finding. The 2nd Circuit deferred not to the legislature but to the post-hoc litigation record created by the attorney general.

By creating a feeble version of intermediate scrutiny for the Second Amendment, the 2nd Circuit chose to ignore the Supreme Court's teaching in in McDonald v. Chicago that the Second Amendment is not "a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees."

The two-step test

The Second Circuit adopted the "two-step" Second Amendment test created by the 3rd Circuit in United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010). This test has been adopted by most other circuits and is a very useful test for gun regulations. It is not needed for cases involving the prohibition of arms, a subject for which Heller and McDonald already demonstrated the analytical methodology. (Namely, bans on "dangerous and unusual weapons" are fine, and bans on arms "in common use," which are "typically possessed by law-abiding citizens for lawful purposes," are not.)

The Marzzarella two-step test is as follows: 1. Does the challenged law implicate the Second Amendment right? If no, the government wins. 2. If yes, apply some level of heightened scrutiny. "Heightened scrutiny" is a term of art that encompasses strict scrutiny and intermediate scrutiny—as opposed to rational basis review.

For a case involving the obliteration of a firearm's serial number, the Marzzarella court applied ordinary intermediate scrutiny and upheld the federal law. The Marzzarella court analogized the serial number law to First Amendment "time, place, and manner" regulations. This was apt, as the "manner" was that a person cannot deface a firearm by obliterating the serial number supplied by the manufacturer. Banning the possession of such guns has no effect at all on a person's choice of firearm, since all lawfully manufactured or imported arms in the United States have serial numbers.

For the 2nd Circuit in NYSRPA, Step 1 was easy: "Americans own millions of the firearms that the challenged legislation prohibits." Likewise, there are tens of millions of magazines over 10 rounds. As for whether these arms are "typically possessed by law‐abiding citizens for lawful purposes," the 2nd Circuit was agnostic but assumed that they were. Given that just one of the firearms at issue, the AR-15, is the best-selling rifle in American history, it would have been implausible to conclude that it is not typically used for lawful purposes.

Because the arms were being banned rather than regulated, that should have ended the case pursuant to Heller and McDonald. However, the 2nd Circuit rejected the plaintiffs' argument that Heller and McDonald had provided the categorical rule to decide the case. "On the contrary, Heller indicated that the typical 'standards of scrutiny' analysis should apply to regulations impinging upon Second Amendment rights, but that D.C.'s handgun ban would fail '[u]nder any of the standards of scrutiny.'" So the 2nd Circuit proceeded to Step 2 of Marzzarella: apply some form of heightened scrutiny.

Did the 2nd Circuit apply heightened scrutiny correctly? There is an easy way to tell: According to the 2nd Circuit's characterization of Heller, "any" form of heightened scrutiny must find that a handgun ban is unconstitutional. Under the 2nd Circuit's rule, the heightened scrutiny applied in NYSRPA is defective, because it would uphold a handgun ban. This will be demonstrated after explication of the NYSRPA version of intermediate scrutiny.

Strict or intermediate scrutiny?

What level of heightened scrutiny to apply? The laws are statewide prohibitions on arms that many citizens prefer to possess for self-defense in the home. But the 2nd Circuit found that intermediate scrutiny should apply because the laws did not ban "an entire class of firearms" (such as handguns). Instead, citizens could still "arm themselves with non‐semiautomatic weapons or with any semiautomatic gun that does not contain any of the enumerated military‐style features." In other words, the only gun bans that would trigger strict scrutiny would be a ban on all handguns or all shotguns or all rifles. This is very different from Marzzarella, which found intermediate scrutiny appropriate in part because the serial number law "leaves a person free to possess any otherwise lawful firearm he chooses-so long as it bears its original serial number." The removal of a serial number adds nothing to a gun's functionality; in contrast, the features banned by the New York and Connecticut statutes do affect a gun's safe, accurate functionality. As detailed in Wednesday's article, the banned "features," such as adjustable stocks, forward grips and muzzle brakes make a gun more accurate and comfortable.

The 2nd Circuit also revealed that it did not understand the laws that it was upholding. If a firearms manufacturer made a version of the AR-15 that had no "military style features" (no adjustable stock, no grip, no threads for a muzzle brake, etc.), that firearm would still be banned, because it would be a "copy" or "duplicate" of an ordinary AR-15, having "the capability of" the AR-15 (same caliber, type of action, rate of fire, etc.).

Because citizens can acquire "alternative" firearms for self-defense, the impact on self-defense was not "severe," said the 2nd Circuit. Yet as the 2nd Circuit stated, the banned guns are more accurate than the remaining alternatives. It is hard to see why forcing people to use less-accurate firearms when they are in mortal peril from home invaders is not a "severe" burden on self-defense.

As for banning all magazines over 10 rounds, that was, according to the 2nd Circuit, not a ban on an "entire class," because citizens can still buy smaller magazines. This is like saying that a ban on all books longer than 200 pages does not ban an "entire class" of books, because short books are still available. Magazines over 10 rounds constitute nearly half of all magazines. Fyock v. City of Sunnyvale, 25 F.Supp.3d 1267, 1275 (N.D. Cal. 2014) (noting National Shooting Sports Foundation research that such magazines "make up approximately 47 percent of all magazines owned"). It is unpersuasively glib for a court to brush off a size-based ban on nearly half of a constitutionally protected item (arms, printing presses, rosaries or whatever) by pointing out that small versions of the item have not been outlawed.

Less burdensome alternatives

What are the requirements for intermediate scrutiny? Like strict scrutiny, intermediate scrutiny involves an evaluation of two elements: 1. The government interests at stake and 2. The law's "fit" with those interests. The elements are the same throughout heightened scrutiny, but the bar is lower for intermediate scrutiny. For example, in strict scrutiny, the government interest must be "compelling," but in intermediate scrutiny the government interest need only be "important." Similarly, in strict scrutiny, the laws must be the "least restrictive" means of advancing the government interest; in intermediate scrutiny, the "least" restrictive means is not necessary, but the law "may not burden" more of the right "than is reasonably necessary." Drawing on Supreme Court First Amendment precedents, the 3rd Circuit in Marzzarella articulated and applied these standards. Marzzarella, citing as examples Turner Broadcast Sys. v. FCC, 512 U.S. 622, 662 (1994); Ward v. Rock Against Racism, 491 U.S. 781, 800 (1989).

The 2nd Circuit, however, described intermediate scrutiny in a way that omitted consideration of substantially less burdensome or restrictive alternatives. Judge José Cabranes cited one of his prior opinions in which less restrictive alternatives had not been at issue. In Ernest J. v. Stone, the government sought to commit Ernest J. because he had violated his conditions of release, after having pleaded not guilty by reason of mental disease. To revoke Ernest J.'s conditional release, the standard of proof was "preponderance of the evidence." In contrast, commitments for persons who have never pleaded not guilty by reason of mental disease must meet a higher standard: "clear and convincing evidence." Was this an Equal Protection violation? Applying intermediate scrutiny, Judge Cabranes held the law constitutional.

The Ernest J. court faced a binary choice: Is it unconstitutionally discriminatory to have looser commitment standards for people who have pleaded not guilty by reason of mental disease, than for people who have not? The issue of less restrictive alternative was not relevant. In contrast, an arms ban applying to everyone does implicate less restrictive alternatives. Rather than prohibition, there might be regulations that might effectively advance the government's interest while infringing substantially less on the law-abiding exercise of the right by law-abiding citizens. That's what must be considered under intermediate scrutiny when less restrictive alternatives are relevant.

Unlike the 2nd Circuit, the 10th Circuit has followed Marzzarella and the normal intermediate scrutiny precedents on which Marzzarella was based. For example, the 10th Circuit in a Second Amendment intermediate scrutiny case asked whether there is "a severable subcategory of persons as to whom the statute is unconstitutional." United States v. Reese, 672 F.3d 792 (10th Cir. 2010). Last year, the 10th Circuit evaluated the U.S. Post Office's ban on guns in automobiles in postal parking lots. The majority stated that the government "has more flexibility to regulate" because it was acting "as a proprietor" rather than "as a sovereign." The dissent disagreed with the majority's implication "that the intermediate-scrutiny analysis is somehow looser or more forgiving simply because government-owned property is involved." Even when applying an especially loose version of intermediate scrutiny, the 10th Circuit considered whether there was a less restrictive alternative. (That alternative was for the Post Office to issue permits for patrons to have guns in postal parking lots; the 10th Circuit rejected the alternative as "administratively unworkable.") Bonidy v. U.S. Postal Service, 790 F.3d 1121 (10th Cir. 2015).

Judge David Ebel, who authored the Bonidy majority, is the only active 10th Circuit judge who is strongly identified with an anti-Second Amendment orientation. After 2004, most of the 10th Circuit adopted a discretely agnostic attitude toward the Second Amendment. The general approach was to uphold challenged laws (e.g., bans on gun possession by felons) even if, in the alternative, the Second Amendment were to be considered an individual right. Opposition to this approach came from Judge Ebel, who continued to maintain that the Second Amendment definitely had no application outside the National Guard. (See Kopel, The Second Amendment in the Tenth Circuit, 86 D.U. L. Rev. 901 (2009).) Yet even Judge Ebel, to his credit, appropriately considered the less restrictive alternative in the 2015 Bonidy case.

By NYSRPA standards, Judge Ebel would be something of a pro-gun extremist.

"The predictive judgments of the legislature"

Judge Cabranes emphasized the court's duty to give "substantial deference to the predictive judgments of the legislature." After all, it is "the legislature's job, not ours, to weigh conflicting evidence and make policy judgments." The quotes are from a Supreme Court case on commercial speech. In Turner Broadcast System v. FCC, 520 U.S. 180 (1997) ("Turner II"), Congress had held many hearings and conducted studies on cable television regulation; as a result, Congress enacted "must carry" legislation requiring cable TV operators to transmit programming from local over-the-air TV stations. The mountain of legislative fact-finding to which the Supreme Court had deferred in Turner was not present in NYSRPA. On January 14, 2013, New York Governor Andrew Cuomo issued a "Message of Necessity" and unveiled his bill to ban firearms and magazines, and to impose many other gun controls. The massive bill passed the Senate that evening and the assembly the next day. There were no legislative hearings. No citizen had the opportunity to speak. Legislators did not have time to read the bill before they voted.

(The backstory is Cuomo's secret "pact" with Republican state Senate Majority Leader Dean Skelos. Skelos ensured passage of some key items on the Cuomo agenda. He offered no opposition to Cuomo's reelection in 2014; in return, Cuomo invested no effort in trying wrest control of the Senate from the Republicans. Cuomo and Skelos are currently mired in corruption allegations, and Skelos has lost his leadership role.)

So really, Judge Cabranes and his colleagues were not deferring to the New York legislature; they were deferring to the New York attorney general. In litigation, the attorney general created much evidence, such as expert affidavits, to support the new statute. For citations to what were called "the legislature's" objectives and rationale, and its supposed weighing of conflicting evidence, the NYSRPA opinion cited to the attorney general's briefs and the litigation record created by the attorney general.

The New York attorney general—bereft of a legislative record in which conflicting evidence was weighed in order to make predictive judgments—had created a thorough litigation record of its own. Deferring to the attorney general, the 2nd Circuit said that if there is evidence that "fairly supports" the government, then prohibition is valid. The case had been decided in the district court on cross motions for summary judgment. Like the 2nd Circuit, the district court had ruled that all the government need do is produce evidence to "fairly support" the prohibition.

By this standard, the government will always win when it litigates competently. Gun rights cases often involve contested statistics, social science and so on. Defending anti-gun laws, government lawyers marshal experts, studies, affidavits and other evidence. The other side will do the same. As long as the government lawyers are thorough during litigation, they will almost always win. The NYSRPA standard turns Second Amendment litigation into a game with only one possible winner in almost every situation, as the long as the government plays competently. That is not a standard that applies to the rest of the Bill of Rights.

The 2nd Circuit standard is actually a perversion of the Supreme Court case that employed the "fairly support" standard that the 2nd Circuit quoted. In the Supreme Court's City of Los Angeles v. Alameda Books, 535 U.S. 425 (2002), "fairly support" was just the first stage in a three-stage test. The test was: 1. The government's "evidence must fairly support its rationale." 2. If the government passes stage one, then the plaintiffs have the burden "to cast direct doubt on this rationale." The plaintiffs can carry their burden "either by demonstrating" that the government's "evidence does not support its rationale or by furnishing evidence that disputes" the government's "factual findings." 3. If the plaintiffs carry their stage two burden, then "the burden shifts back" to the government "to supplement the record with evidence renewing support for a theory that justifies its ordinance."

But in the 2nd Circuit's version of Los Angeles v. Alameda Books, the government always wins if it passes stage one. This makes the Second Amendment "a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees."

The magazine ban

The 2nd Circuit devoted two paragraphs to this. A quick summary of the highlights of the attorney general's side of the record was sufficient, according to the 2nd Circuit.

Striking the seven-round load limit

Although the Alameda Books three-stage test had been reduced to just one stage, the governments failed stage one—regarding two other provisions. First, in New York, the legislature had allowed the possession of 10-round magazines, but they could be loaded only with seven rounds, except at a shooting range. The legislature had originally banned magazines over seven rounds; later it discovered that "seven‐round magazines are difficult to obtain commercially. Its compromise was to permit gun owners to use ten‐round magazines if they were loaded with seven or fewer rounds." (If there had been legislative hearings and fact-finding, this would have been discovered before the bill was passed.)

The 2nd Circuit found that "New York has failed to present evidence that the mere existence of this load limit will convince any would‐be malefactors to load magazines capable of holding ten rounds with only the permissible seven." Quoting Alameda Books and Turner Broadcasting, the 2nd Circuit pointed out that the government cannot "get away with shoddy data or reasoning." It must show "reasonable inferences based on substantial evidence."

Besides the dubious hope that criminals would underload their magazines, the attorney general had offered an alternative rationale: Even if criminals do not obey the law, law-abiding citizens will. The seven-round load limit was to prevent citizens' "indiscriminate and excessive fire." There was the "increased risk to the innocent bystanders who could be harmed if it were easier to discharge large numbers of bullets." 2014 WL 5410592 (Reply Brief for the State Defendants as Appellees and as Cross-Appellants). The 2nd Circuit did not address this argument. New York had offered no evidence that before the seven-round limit, law-abiding New Yorkers were wildly firing eight, nine or 10 rounds and indiscriminately hitting innocent people.

Striking the ban on the pump‐action Remington 7615

Finally, the Connecticut ban on 183 guns by name had included the Remington 7615 pump-action rifle. Yet Connecticut's entire rationale had been about semi-automatic guns, not about pump-action guns. Connecticut had offered no defense of the ban on the Remington pump-action. When guns are banned based on how they look, mistakes will be made. So the 2nd Circuit struck that ban. The court emphasized that it was not foreclosing the possibility that the ban on the Remington could be upheld, if the government produced evidence. But you can't pass Alameda Books stage one based on nothing.

Contradicting Heller

As noted, the NYSRPA court said that the D.C. handgun ban failed intermediate scrutiny. This is true if intermediate scrutiny is seriously applied. This is not true under the uniquely weak version of intermediate scrutiny which NYSRPA invented for the Second Amendment. Let's examine the difference between NYSRPA intermediate scrutiny and normal intermediate scrutiny.

Applying NYSRPA intermediate scrutiny to a handgun ban, there are only two questions: 1. Is there an important government interest? Yes, preventing violent criminals from shooting people. 2. Is there evidence to "fairly support" the inference that a handgun ban could advance the government interest? Yes. As detailed in Justice Stephen Breyer's Heller dissent, there is extensive social science evidence about the harms of handgun misuse, disproportionate to other firearms. Further, there is (disputed) social science evidence that handgun bans are effective at reducing handgun crime. Under NYSRPA, that is all that is needed for the government to win under intermediate scrutiny.

But we know that such a result is necessarily incorrect. NYSPRA itself declares that handgun bans fail intermediate scrutiny. Q.E.D., NYSRPA is a defective version of intermediate scrutiny. On the other hand, if real intermediate scrutiny were applied to a handgun ban, there are at least two reasons why the handgun ban would fail:

1. First, a court would consider all the evidence. Alameda Books provides a structure for courts to consider the evidence from both sides. Other intermediate scrutiny cases, such as Turner (and Ward v. Rock Against Racism, McCullen v. Coakley, and many others) also look at both sides of the evidence. They do not say that the government wins the case in round one whenever it provides plausible support for its rationale. So one reason that a handgun ban might fail intermediate scrutiny is that when you look at all the pro/con evidence, the evidence of prohibition's harm to law-abiding citizens and of prohibition's trivial impact on criminals significantly outweighs the rationales for prohibition. This can be true even when a judge gives substantial but not unlimited deference to legislative judgments. So a decision upholding an arms prohibition statute under intermediate scrutiny would have to engage with the pro/con evidence much more than the NYSRPA court did.

2. The second reason that a handgun ban fails intermediate scrutiny is that it has poor "fit." While intermediate scrutiny does not require "narrow tailoring," a poor fit is insufficient. Instead of prohibition, there is the less restrictive alternative of regulation. The Heller court expressly left room for that. Given the Heller majority's profound disinterest in the social science pro/con, the less restrictive alternative test is the best explanation of why Heller said that handgun bans fail intermediate scrutiny. Experience has proven the court correct: D.C. now has a strict registration system for handgun acquisition. D.C. citizens with registered handguns are not misusing them. Nor does the existence of lawful registration seem to have impaired D.C.'s rigorous enforcement of its laws against unregistered handguns.

The second-class intermediate scrutiny invented by NYSRPA is not just a problem for the issues that were at bar. NYSRPA sets a low standard of review for future Second Amendment cases. The 2nd Circuit is not the only court to have perverted intermediate scrutiny in order to uphold gun controls. This poses a danger to normal intermediate scrutiny, as in the First and 14th amendments. The courts that fabricate second-class intermediate scrutiny for the Second Amendment do not declare that they are inventing a new, weak intermediate scrutiny just for the Second Amendment; instead, they pretend that they are using intermediate scrutiny in the ordinary way. By repeatedly claiming that weak intermediate scrutiny is genuine intermediate scrutiny, courts such as the 2nd Circuit are planting precedents that future courts could use to impose weak intermediate scrutiny throughout the Constitution. Thus, lower court evisceration of intermediate scrutiny in cases such as NYSRPA creates a threat well beyond the infringement of Second Amendment rights.