The Volokh Conspiracy
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No nominee to the U.S. Supreme Court has had such a detailed record on Second Amendment as does Brett Kavanaugh. His 2011 dissenting opinion in the case known as Heller II was consistent with his long-standing adherence to text, history, tradition, and Supreme Court precedent.
Background: In 2008, the U.S. Supreme Court affirmed that the Second Amendment is an individual right, and is not limited only to militiamen. The Court carefully examined the text of the Second Amendment and the history of the right from early England through Reconstruction. The Court held two D.C. ordinances to violate the Second Amendment: a handgun ban and a prohibition on using any firearm in the home for self-defense. The District also forbade all gun carrying without a permit, even carrying shotgun from one's bedroom to the basement for cleaning. Carry permits were never issued. The Court ordered D.C. to issue Dick Heller a carry permit.
Following the Supreme Court decision, the D.C. Council enacted very restrictive gun controls. A new lawsuit resulted, among whose plaintiffs were Mr. Heller. In the 2011 case known as Heller II, a 2-1 panel of the D.C. Circuit upheld some of the new D.C. ordinances and remanded others to the district court. Judge Kavanaugh wrote a dissenting opinion. Later, in 2015's Heller III, another 2-1 D.C. Circuit panel (not including Judge Kavanaugh) upheld some more of the D.C. laws and held others unconstitutional. (Here's my analysis of Heller III.)
The 2011 Heller II majority opinion has had broad influence in the lower federal courts. (For details: Kopel & Greenlee, The Federal Circuits' Second Amendment Doctrines, St. Louis University Law Journal (2017)). Judge Kavanaugh offered a different approach.
"Text, history, and tradition" methodology for Second Amendment cases
Judge Kavanaugh noted the controversy over gun control, and cited articles by Judges Richard Posner and J. Harvie Wilkinson, III, which criticized the Heller decision. (Here's a critique of Judge Wilkinson's critique.) "As a lower court, however, it is not our role to re-litigate Heller or to bend it in any particular direction. Our sole job is to faithfully apply Heller and the approach it set forth for analyzing gun bans and regulations."
The new D.C. law banned many semi-automatic rifles. The prohibition was acknowledged to be the broadest in the United States. Judge Kavanaugh explained that Heller prevents a ban on semi-automatic handguns, and the same reasoning applies to similar rifles:
In Heller, the Supreme Court held that handguns—the vast majority of which today are semi-automatic—are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semi-automatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller's protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.'s ban on them is unconstitutional. (By contrast, fully automatic weapons, also known as machine guns, have traditionally been banned and may continue to be banned after Heller.)
The new D.C. gun registration laws were also unusual:
D.C.'s registration requirement, which is significantly more stringent than any other federal or state gun law in the United States, is likewise unconstitutional. Heller and later McDonald [v. Chicago, 2010] said that regulations on the sale, possession, or use of guns are permissible if they are within the class of traditional, "longstanding" gun regulations in the United States. Registration of all lawfully possessed guns—as distinct from licensing of gun owners or mandatory record-keeping by gun sellers—has not traditionally been required in the United States and even today remains highly unusual.
Under Heller's history-and tradition-based test, D.C.'s registration requirement is therefore unconstitutional.
Judge Kavanaugh explained that Heller authorized many gun controls:
Indeed, Heller largely preserved the status quo of gun regulation in the United States. Heller established that traditional and common gun laws in the United States remain constitutionally permissible. The Supreme Court simply pushed back against an outlier local law—D.C.'s handgun ban—that went far beyond the traditional line of gun regulation. As Heller emphasized: "Few laws in the history of our Nation have come close to the severe restriction of the District's" law. 554 U.S. at 629.
…D.C. appeared to push the envelope again, with its new ban on semi-automatic rifles and its broad gun registration requirement. D.C.'s public safety motivation in enacting these laws is worthy of great respect. But the means D.C. has chosen are again constitutionally problematic. The D.C. gun provisions at issue here, like the ban at issue in Heller, are outliers that are not traditional or common in the United States. As with D.C.'s handgun ban, therefore, holding these D.C. laws unconstitutional would not lead to nationwide tumult. Rather, such a holding would maintain the balance historically and traditionally struck in the United States between public safety and the individual right to keep arms—a history and tradition that Heller affirmed and adopted as determining the scope of the Second Amendment right.
In Judge Kavanaugh's view, "gun bans and regulations" should "be analyzed based on the Second Amendment's text, history, and tradition (as well as by appropriate analogues thereto when dealing with modern weapons and new circumstances…" He did not think judges should "re-calibrate the scope of the Second Amendment right based on judicial assessment of whether the law advances a sufficiently compelling or important government interest to override the individual right." In his view, Heller had been clear that Second Amendment cases should be decided "based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny."
Judge Kavanaugh's dissent detailed how the Heller opinion relied on "text, history, and tradition." So too was McDonald v. Chicago, he argued. (McDonald, decided in 2010, held that the Second Amendment applies to state and local governments, thanks to the Fourteenth Amendment.) He noted that this approach was compatible with gun control:
Indeed, governments appear to have more flexibility and power to impose gun regulations under a test based on text, history, and tradition than they would under strict scrutiny. After all, history and tradition show that a variety of gun regulations have co-existed with the Second Amendment right and are consistent with that right, as the Court said in Heller. By contrast, if courts applied strict scrutiny, then presumably very few gun regulations would be upheld.
The text/history/tradition standard is "much less subjective because "it depends upon a body of evidence susceptible of reasoned analysis rather than a variety of vague ethico-political First Principles whose combined conclusion can be found to point in any direction the judges favor." (Quoting Justice Scalia's concurrence in McDonald). Although historical inquiry may involve difficult questions, "the range of potential answers will be far more focused under an approach based on text, history, and tradition than under an interest-balancing test such as intermediate scrutiny."
What about "when legislatures seek to address new weapons that have not traditionally existed or to impose new gun regulations because of conditions that have not traditionally existed"? Then, "in such cases, the proper interpretive approach is to reason by analogy from history and tradition."
Not everything that is traditional is necessarily constitutional, Judge Kavanaugh wrote in a footnote. "[P]post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text." For example, "The practice of separate but equal was inconsistent with and repugnant to the text and original meaning of the Equal Protection Clause. See Brown v. Bd. of Education, 347 U.S. 483 873 (1954); Strauder v. West Virginia, 100 U.S. 303 (1880)."
Why the semi-automatic ban failed heightened scrutiny
If an interest balancing test were to be used, it should be strict scrutiny:
A ban on a class of arms is not an "incidental" regulation. It is equivalent to a ban on a category of speech. Such restrictions on core enumerated constitutional protections are not subjected to mere intermediate scrutiny review. The majority opinion here is in uncharted territory in suggesting that intermediate scrutiny can apply to an outright ban on possession of a class of weapons that have not traditionally been banned.
The vast majority of handguns today are semi-automatic. In Heller, the Supreme Court ruled that D.C.'s law banning handguns, including semi-automatic handguns, was unconstitutional. District of Columbia v. Heller, 554 U.S. 570, 628–29 (2008). This case concerns semi-automatic rifles. As with handguns, a significant percentage of rifles are semi-automatic….
[I]t would strain logic and common sense to conclude that the Second Amendment protects semi-automatic handguns but does not protect semi-automatic rifles….
[T]he Second Amendment as construed in Heller protects weapons that have not traditionally been banned and are in common use by law-abiding citizens. Semi-automatic rifles have not traditionally been banned and are in common use today, and are thus protected under Heller.
As Justice Kavanaugh explained, semi-automatic rifles date back to the Winchesters and Remingtons of 1903-06. Meanwhile, "The first semi-automatic shotgun, designed by John Browning and manufactured by Remington, hit the market in 1905 and was a runaway commercial success….Many of the early semi-automatic rifles were available with pistol grips. These semi-automatic rifles were designed and marketed primarily for use as hunting rifles, with a small ancillary market among law enforcement officers." (citing John Henwood, The Forgotten Winchesters.) "Semi-automatic rifles remain in common use today, as even the majority opinion here acknowledges."
Although a few states and municipalities ban some categories of semi-automatic rifles, most of the country does not, and even the bans that exist are significantly narrower than D.C.'s. What the Supreme Court said in Heller as to D.C.'s handgun ban thus applies just as well to D.C.'s new semi-automatic rifle ban: "Few laws in the history of our Nation have come close to the severe restriction of the District's" law. 554 U.S. at 629.
in its 1994 decision in Staples, the Supreme Court already stated that semi-automatic weapons "traditionally have been widely accepted as lawful possessions." 511 U.S. at 612. Indeed, the precise weapon at issue in Staples was the AR-15. The AR-15 is the quintessential semi-automatic rifle that D.C. seeks to ban here. Yet as the Supreme Court noted in Staples, the AR-15 is in common use by law-abiding citizens and has traditionally been lawful to possess.
The D.C. law also banned magazines over 10 rounds. The majority upheld the ban, but Judge Kavanaugh would have remanded for fact-finding:
In order to apply Heller's test to this prohibition, we must know whether magazines with more than 10 rounds have traditionally been banned and are not in common use. The parties here did not brief that question in much detail. Evidence presented to the District Court on the history and prevalence of magazines of more than 10 rounds would be helpful to the proper disposition of that issue under the Heller test. Therefore, I would remand to the District Court for analysis of that issue.
(Those questions are addressed in my article The History of Firearms Magazines and Magazine Prohibitions.)
In balancing interests, the panel majority had weighed the interests wrongly:
The majority opinion next contends that semi-automatic handguns are good enough to meet people's needs for self-defense and that they shouldn't need semi-automatic rifles. But that's a bit like saying books can be banned because people can always read newspapers. That is not a persuasive or legitimate way to analyze a law that directly infringes an enumerated constitutional right. Indeed, Heller itself specifically rejected this mode of reasoning: "It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed." 554 U.S. at 629.
So "D.C.'s at-least-you-can-still-possess-other-kinds-of-guns argument is no more persuasive this time around."
The majority had also failed to consider the rights of hunters:
Furthermore, the majority opinion's assertion does not sufficiently account for the fact that rifles, but typically not handguns, are used for hunting. Cf. Heller, 554 U.S. at 599 (most founding-era Americans "undoubtedly" thought right to own firearms "even more important for self-defense and hunting" than for militia service).
Judge Kavanaugh was skeptical of "the rhetorical term 'assault weapon'" and of labeling the banned guns "offensive." The guns are used in crime much less often than handguns are. Semiautomatic rifles fire at the same rate as semiautomatic handguns, which can't be banned. "[I]t is the person, not the gun, who determines whether use of the gun is offensive or defensive."
Under intermediate scrutiny, yet another problem with D.C.'s law is its tailoring. The law is not sufficiently tailored even with respect to the category of semi-automatic rifles. It bans certain semi-automatic rifles but not others—with no particular explanation or rationale for why some made the list and some did not. The list appears to be haphazard. It does not reflect the kind of tailoring that is necessary to justify infringement of a fundamental right, even under the more relaxed intermediate scrutiny test.
D.C. unusual gun registration ordinances fail the history and tradition test
The Supreme Court in Heller had affirmed the permissibility of certain "longstanding" gun controls.
The fundamental problem with D.C.'s gun registration law is that registration of lawfully possessed guns is not "longstanding." Registration of all guns lawfully possessed by citizens in the relevant jurisdiction has not been traditionally required in the United States and, indeed, remains highly unusual today.
In contrast, gunowner licensing could be appropriate:
Licensing requirements mandate that gun owners meet certain standards or pass certain tests before owning guns or using them in particular ways. Those laws can advance gun safety by ensuring that owners understand how to handle guns safely, particularly before guns are carried in public. For example, many jurisdictions that permit the carrying of concealed weapons have traditionally imposed licensing requirements on persons who wish to carry such weapons. Registration requirements, by contrast, require registration of individual guns and do not meaningfully serve the purpose of ensuring that owners know how to operate guns safely in the way certain licensing requirements can. For that reason, registration requirements are often seen as half-a-loaf measures aimed at deterring gun ownership….
Likewise, it's also important at the outset to distinguish registration requirements imposed on gun owners from record-keeping requirements imposed on gun sellers. Some record-keeping requirements on gun sellers are traditional and common. Thus, the government may constitutionally impose certain record-keeping requirements on the sellers of guns. See Heller, 554 U.S. at 627 (listing "conditions and qualifications on the commercial sale of arms" as being within category of traditional gun regulations).
There certainly is no tradition in the United States of gun registration imposed on all guns.
Even compared to the few states that do have gun registration, "It is undisputed in this case that D.C.'s myriad registration-related requirements are unique—and uniquely burdensome—among laws in the United States." Thus, the D.C. registration system violated the test of history and tradition.
It was true that early American militia laws required militiamen to show that they possessed the mandatory arms. But "those early militia laws applied only to militiamen, not to all citizens…. Second, militia members were required to submit for inspection only one or a few firearms, not all of their firearms. That's because the purpose of those early militia requirements was not registration of firearms, but rather simply to ensure that the militia was well-equipped." So "Yet again, what the Supreme Court said in Heller with respect to D.C.'s handgun ban applies as well to D.C.'s registration requirement: 'Few laws in the history of our Nation have come close to the severe restriction of the District's' law."
An earlier Supreme Court case on gun control (U.S. v. Miller, 1939), had examined a prosecution for possession of an unregistered firearm. (The National Firearms Act of 1934 required registration for short-barreled shotguns and rifles, and for machine guns).
If registration were constitutionally permissible for all lawfully possessed guns, the Court could simply have affirmed the conviction on that ground. Instead, the Miller Court analyzed whether the kind of gun Miller possessed—a sawed-off shotgun—was within the class of weapons protected by the Second Amendment. The Court's approach suggested that the government could require registration only of guns that were outside the protection of the Second Amendment—namely, those classes of guns that the government had traditionally banned and that were not in common use, such as machine guns and sawed-off shotguns.
Why the registration laws fail heightened scrutiny
To begin with, it would be hard to persuasively say that the government has an interest sufficiently weighty to justify a regulation that infringes constitutionally guaranteed Second Amendment rights if the Federal Government and the states have not traditionally imposed—and even now do not commonly impose—such a regulation.
D.C. hadn't offered a persuasive rationale for the registration law, but perhaps it could do so if it got another chance in district court:
Moreover, D.C.'s articulated basis for the registration requirement is that police officers, when approaching a house to execute a search or arrest warrant or take other investigative steps, will know whether the residents have guns. But that is at best a Swiss-cheese rationale because police officers obviously will assume the occupants might be armed regardless of what some central registration list might say. So this asserted rationale leaves far too many false negatives to satisfy strict or intermediate scrutiny with respect to burdens on a fundamental individual constitutional right. D.C.'s registration law thus does not appear to be sufficiently tailored to advance a compelling or important government interest for purposes of the heightened scrutiny tests. That said, D.C. alludes to the possibility that other rationales might be asserted to support a registration requirement. Therefore, if I were applying a form of heightened scrutiny to the registration requirement, I would remand for further analysis of the interests that might be asserted. (It is possible, moreover, that the registration law might pass intermediate but not strict scrutiny.)
Indeed, under the decision of the majority of the Heller II, the most novel parts of registration law were remanded to the district court for further factfinding and development. Ultimately, some of the laws were upheld and some were not, in Heller III, under intermediate scrutiny. (As noted, Judge Kavanaugh was not on the Heller III panel.)
In conclusion, Judge Kavanaugh explained that he might favor some of the above gun controls as a matter of policy, but he thought them contrary to Supreme Court precedent:
As one who was born here, grew up in this community in the late 1960s, 1970s, and 1980s, and has lived and worked in this area almost all of his life, I am acutely aware of the gun, drug, and gang violence that has plagued all of us. As a citizen, I certainly share the goal of Police Chief Cathy Lanier to reduce and hopefully eliminate the senseless violence that has persisted for too long and harmed so many. And I greatly respect the motivation behind the D.C. gun laws at issue in this case. So my view on how to analyze the constitutional question here under the relevant Supreme Court precedents is not to say that I think certain gun registration laws or laws regulating semi-automatic guns are necessarily a bad idea as a matter of policy. If our job were to decree what we think is the best policy, I would carefully consider the issues through that different lens and might well look favorably upon certain regulations of this kind. But our task is to apply the Constitution and the precedents of the Supreme Court, regardless of whether the result is one we agree with as a matter of first principles or policy. See Texas v. Johnson, 491 U.S. 397, 420–21 (1989) (Kennedy, J., concurring) [striking law against flag-burning] ("The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result."). A lower-court judge has a special obligation, moreover, to strictly and faithfully follow the lead of the "one supreme Court" established by our Constitution, regardless of whether the judge agrees or disagrees with the precedent.
Few government objectives are more important than fighting violent crime.
That said, the Supreme Court has long made clear that the Constitution disables the government from employing certain means to prevent, deter, or detect violent crime. See, e.g., Mapp v. Ohio, 367 U.S. 643 (1961) [exclusionary rule against using illegally-seized evidence in court]; Miranda v. Arizona, 384 U.S. 436 (1966) [arrestees must be informed of their right to counsel]; City of Indianapolis v. Edmond, 531 U.S. 32 (2000) [against random checkpoints for motorists]; Crawford v. Washington, 541 U.S. 36 (2004) [enforcing right to confront witnesses in criminal trial]; Kennedy v. Louisiana, 554 U.S. 407 (2008) [death penalty only for treason or for crimes resulting in a death, not for aggravated rape]; District of Columbia v. Heller, 554 U.S. 570 (2008). In the words of the Supreme Court, the courts must enforce those constitutional rights even when they have "controversial public safety implications." McDonald v. City of Chicago, 130 S.Ct. 3020, 3045 (2010) (controlling opinion of Alito, J.).
Judge Kavanaugh's text, history, and tradition methodology for Second Amendment cases will not please people who believe that all gun control is impermissible, nor will it please advocates who want to make the Second Amendment a second-class right.