In Ezell v. City of Chicago, the Seventh Circuit concluded that it had “to follow the Court’s lead in resolving questions about the scope of the Second Amendment by consulting its original public meaning as both a starting point and an important constraint on the analysis.” In other words, the Seventh Circuit thought it was bound to an originalist methodology in assessing Second Amendment claims. In his concurring opinion in Kisor v. Wilkie last term, Justice Gorsuch may have cast some doubt on such a strong assumption.
In Kisor, the Court declined to overrule its prior decisions adopting what has become called Auer deference—the deference that courts gives to agencies interpreting their own regulations. Justice Kagan, writing for the Court, explained that “Auer deference retains an important role in construing agency regulations. But even as we uphold it, we reinforce its limits. Auer deference is sometimes appropriate and sometimes not.” Resort to this kind of deference, the Court said, is only appropriate if the regulation is genuinely ambiguous after a court has exhausted all the usual tools of statutory interpretation to divine its meaning. And even when agencies get deference, that deference is not conclusive; courts only defer to reasonable interpretations that reflect an agency’s authoritative, settled judgment. “What emerges is a deference doctrine not quite so tame as some might hope, but not nearly so menacing as they might fear.” The strong reasons for respecting prior decisions of the Court—the collective principles embodied in the notion of stare decisis—cut strongly against overruling Auer.
Justice Gorsuch disagreed; he thought the better practice would have been to scrap Auer altogether. One notable feature of the decision he identified was that Auer wasn’t a ruling about, for example, the meaning of a particular statutory provision, but “claim[ed] to do much more than that—to prescribe an interpretive methodology governing every future dispute over the meaning of every regulation.” And that, he said, should give the Court hesitation before even applying principles of stare decisis to save Auer. Typically, he noted, “we do not regard statements in our opinions about such generally applicable interpretive methods, like the proper weight to afford historical practice in constitutional cases or legislative history in statutory cases, as binding future Justices with the full force of horizontal stare decisis.” On his view, employing stare decisis principles—or at least strong ones—to Auer was not consistent with the Court’s past practice or the justifications for the rule itself.
To be sure, there are important differences between the precedential effect of a Supreme Court opinion on lower courts and the stare decisis effect of a prior Supreme Court opinion on a later case confronting the Court. Even Justice Gorsuch would concede that lower courts are bound to apply Auer deference even if the Supreme Court ought not to afford it any stare decisis effect. But his general concern raises questions for lower courts, like Ezell, that purport to be bound by an interpretive methodology that the Court does not, by its terms, require lower courts to apply. The Court decided Heller by employing an originalist methodology, but it did not (unlike Auer) say that this is how courts ought to read the Constitution. That would be a strong demand, given the conflicting and contested ways to determine constitutional meaning. Interpretive approaches abound, and evolve, and tying lower courts to one such methodology in the Second Amendment space should at least require a clearer statement from the Court.