Where Are All the Second Amendment Circuit Splits?

  • Date:
  • August 16, 2019

Gun debates are notoriously contentious and controversial, and they seldom lead to consensus. Gun litigation is a different story. In the hundreds of Second Amendment challenges in the federal courts since Heller, there has been surprising judicial agreement. Among federal courts of appeals, there is near-consensus on most questions. There are some noteworthy circuit splits, to be sure, but those are localized and limited. The more surprising aspect of federal circuit court treatment of the Second Amendment is how well-settled so many issues have become only a decade into the existence of a legally enforceable individual right.

The agreement covers a wide spectrum of issues, including how to approach cases raising a Second Amendment challenge and what to do with specific types of claims.

Methodological Questions

Take the question of how Second Amendment challenges ought to be adjudicated. The courts of appeals have uniformly adopted a two-part test: courts ask first whether activity or conduct is protected by the Second Amendment and, if it is, they apply some form of means-end scrutiny to determine constitutionality. Although some circuit judges have advocated rejecting the two-part test in favor of a “text, history, and tradition” approach (including then-Judge Kavanaugh), no federal court of appeals has adopted that framework—or any methodology that jettisons the two-part test. That could change in the current Second Amendment challenge pending in the Supreme Court, but for now the methodological question is settled.

Substantive Claims

The circuit courts have also largely agreed on specific types of Second Amendment challenges. Without exception, every federal court of appeals to have considered the question has upheld a ban on large-capacity magazines (indeed, a district judge in California recently “became the first federal court in the nation to invalidate LCM restrictions”).  The courts of appeals have uniformly upheld bans on so-called “assault weapons.” (Some have done so under Step 1, ruling that “assault weapons” have no Second Amendment protection whatsoever; others have done so under Step 2, upholding the bans under intermediate scrutiny.) These courts have, in addition, consistently rejected facial challenges to the  firearms prohibition for felons—and many other categories of prohibited persons: "Facial challenges to the statute’s constitutionality have failed in every circuit to have considered the issue." They have consistently rejected challenges to laws banning, or tightly regulating, possession of certain types of dangerous and unusual weapons. For example, “Every post-Heller circuit court that has addressed the machine gun issue has rejected Second Amendment claims.” The amount of agreement over such a wide swath of regulations is noteworthy.

Because the circuit courts are in full agreement about methodology, and largely in agreement about substantive issues, the only arguable circuit splits are limited to a relatively small—though important—set of substantive questions. For example, there’s disagreement about when, if ever, undocumented immigrants can be considered part of “the people” protected by the Second Amendment. Some courts’ answer is never: “Whatever else the term means or includes, the phrase ‘the people’ in the Second Amendment of the Constitution does not include aliens illegally in the United States.” Other courts hold or assume that, at least in some circumstances, they might be protected.

Another point of disagreement is whether and how individuals who fall into a class of prohibited persons might be able to raise an as-applied challenge to the bar. The Third Circuit, for example, has held that the felon prohibition violated the Second Amendment rights of two nonviolent offenders whose convictions were long ago. The Seventh Circuit, by contrast, has rejected the notion that stale, nonviolent crimes are incapable of justifying the loss of Second Amendment rights.

Finally, there’s a split over whether states may limit licenses to public carry to those who can show “good cause” or a “justifiable need” to do so (so-called “may issue” permitting regimes), or whether states must provide licenses to those who meet a list of objective criteria, like completing a training course (“shall issue” regimes). So far, only the D.C. Circuit has taken the view that the Second Amendment forbids the government from requiring that individuals show a heightened need to obtain a license. Others, including the First Circuit, Second Circuit, Third Circuit, Fourth Circuit, and Ninth Circuit, have upheld laws requiring good cause to obtain a permit.

Despite these circuit splits, which routinely occur in many areas of law, including over other constitutional rights, the surprising facet of nascent Second Amendment jurisprudence is how univocal the federal courts of appeals are on a host of difficult methodological, doctrinal, and practical questions. Although the Supreme Court has previously wiped away near-unanimous circuit court understandings of the Second Amendment (see Heller), the courts’ intricate involvement with these nuanced issues may give it pause before doing so again.