The Second Amendment Doctrine of Dissent

  • Date:
  • March 05, 2020

Dissents have a key role to play in law. They allow judges or justices to articulate a view of how the law should be and serve as a signal to scholars, practitioners, and future generations. One thinks, for example, of Holmes’s dissent in Abrams v. United States, which is often viewed as a vehicle for launching the modern understanding of the First Amendment. In the Second Amendment, doctrine has also been formed by the notion of dissent.

Take, for example, the Dissent of the Pennsylvania Minority, which states in relevant part that:

That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil powers.

In Heller, Justice Scalia called this dissent a “highly influential minority proposal.” It undoubtedly informed the Heller majority’s view that the Second Amendment protected an individual right. Indeed, Justice Thomas foreshadowed this view in a solo concurring opinion in 1997 in Printz v. United States, when he suggested that “a growing body of scholarly commentary” with “an impressive array of historical evidence” supported the notion that the Second Amendment confers a personal right.

After Heller, dissents have continued to take an outsized role. Consider then-Judge Kavanaugh’s dissenting opinion in Heller II. There, he articulated the view that text, history, and tradition should govern the inquiry into the constitutionality of gun regulations, not the unanimous approach of the courts of appeals that employs means-end scrutiny. Justice Kavanaugh’s view has taken hold among other conservative judges, who themselves have penned quite vehement dissents from circuit decisions rejecting the text, history, and tradition approach.

Justice Thomas has also continued to raise alarm about the Second Amendment’s treatment in dissents from the Supreme Court’s denial to hear lower court cases. In Friedman v. Highland Park, for example, Justice Thomas (joined by Justice Scalia) dissented from the Court’s denial to hear a case upholding a local ban on assault weapons and high-capacity magazines. There, he argued that “The Court’s refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Court’s willingness to summarily reverse courts that disregard our other constitutional decisions.” This developed a theme he would continue to hammer in other dissents: that the Second Amendment was being treated as a second-class right. As he wrote in another dissent from the Court’s decision declining review of a California law mandating a waiting period before firearm purchases, he said:

[The Ninth Circuit decision] is symptomatic of the lower courts’ general failure to afford the Second Amendment the respect due an enumerated constitutional right. If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court.

He concluded that dissent in even more stark terms:

Our continued refusal to hear Second Amendment cases only enables this kind of defiance. We have not heard argument in a Second Amendment case for nearly eight years. And we have not clarified the standard for assessing Second Amendment claims for almost 10. Meanwhile, in this Term alone, we have granted review in at least five cases involving the First Amendment and four cases involving the Fourth Amendment—even though our jurisprudence is much more developed for those rights. . . . The Court would take [other types of] cases because abortion, speech, and the Fourth Amendment are three of its favored rights. The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message.

Along with the late-Justice Scalia, who joined one of Thomas’s dissents, Justice Gorsuch also joined one in 2017 to the Court’s refusal to hear the challenge to a California law imposing strict requirements on the issuance of concealed carry permits.

With the Supreme Court set to decide NYSRPA in the near future, and with a likelihood of dismissal on mootness grounds, a dissent that sets forth a broad view of the Second Amendment right could again set the stage for future scholarship and (eventually) doctrine.