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Variable Vagueness and the Shadow Second Amendment

By on July 8, 2020 Categories: ,

The Supreme Court’s void-for-vagueness doctrine is trans-substantive in character. As a result, firearm restrictions that would survive Second Amendment scrutiny may still be vulnerable to constitutional attack. In this post, I want to highlight an overlooked connection between the two doctrines—one that has yielded judicial utterances about gun rights outside the formal bounds of Second Amendment adjudication.

Vagueness review has two dominant objectives: ensuring fair notice of prohibited conduct and guarding against arbitrary and discriminatory enforcement. But these standards apply more and less rigorously to different types of enactments. The Court’s 1982 decision in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. articulated a four-part framework for choosing the appropriate level of vagueness scrutiny. Most relevant here, “a more stringent vagueness test” applies to laws that “threaten[] to inhibit the exercise of constitutionally protected rights.” As I’ve detailed in a forthcoming article, this form of synergistic vagueness review can shape constitutional law in unexpected ways. Courts routinely issue unsolicited pronouncements for the sole purpose of selecting a level of vagueness scrutiny.

Gun rights are one of many doctrinal dogs wagged by the tail of clarity. Before the Supreme Court’s 2008 decision in District of Columbia v. Heller, for example, vagueness rulings announced that the Constitution “does not provide a right to possess an assault weapon,” and that the Second Amendment does not extend to drug addicts and convicted felons. And post-Heller, a variety of regulations challenged as unconstitutionally vague have been found to “implicate” the Second Amendment under Hoffman Estates. Examples include an ammunition restriction, a permitting scheme for carrying firearms in public, a ban on certain semiautomatic weapons, and a law forbidding the possession of firearms on U.S. Capitol grounds.

These dynamics deserve the attention of scholars and litigators who track Heller’s implementation by lower courts. Stand-alone vagueness claims can yield incidental declarations on key questions of Second Amendment coverage—statements that are not easily cabined to their originating contexts. And when courts resolve Second Amendment claims, their conclusions that particular restrictions at least implicate Second Amendment rights will lock in a stringent level of scrutiny for future vagueness challenges. In this way, Second Amendment setbacks can create the conditions for future constitutional victories.

These observations may actually understate vagueness’s antiregulatory potential, given the lingering uncertainty over what it means to “threaten” constitutional rights. Under a broad reading of Hoffman Estates, heightened scrutiny can be deployed prophylactically—functioning as “an insulating buffer zone of added protection at the peripheries” of constitutional rights (to channel Professor Anthony Amsterdam’s seminal student note). Litigants can therefore argue that virtually all firearm restrictions—even ones that do not formally burden Second Amendment rights—warrant the most searching level of vagueness scrutiny.

Such penumbral protection would operate as a kind of general constitutional overbreadth doctrine. As Justice Thomas noted in his recent U.S. v. Sineneng-Smith concurrence, the concept of overbreadth—which is native to the First Amendment—closely resembles “vagueness doctrine’s application in the First Amendment context.” And by all appearances, Thomas regards the right to keep and bear arms as an enfeebled protection that “need[s] breathing space to survive.” Yet his Sineneng-Smith concurrence denounced modern overbreadth doctrine as a form of judicial overreach that violates Article III standing principles. Justice Thomas has also questioned the historical validity of vagueness review, analogizing it to the “unsettling” career of substantive due process. It will be fascinating to see which of these commitments prevails if the Court eventually takes up a vagueness challenge with Second Amendment undercurrents.

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To be sure, I am no friend of “constitutional” vagueness review. The Hoffman Estates rubric invites cursory pronouncements that threaten to distort the broader fabric of constitutional decisionmaking. And it deprives litigants of the ability to ensure a “clean” vagueness ruling that will not contaminate adjoining areas of law. But given the present texture of tiered vagueness scrutiny, firearms scholars should closely monitor signs of symbiosis between Second Amendment doctrine and vagueness variability. And for litigators willing to play the long game, Hoffman Estates could furnish an intriguing roadmap for proxy clashes over the Second Amendment’s meaning.