In 2020, the Virginia legislature passed a host of new gun regulations: limiting purchases of handguns to one a month, requiring the reporting of lost/stolen firearms, giving local autonomy over gun restrictions on government property, creating an extreme risk protection (aka red flag) law, and others. These new laws, in a state that had previously granted much greater solicitude for gun-rights advocates, led to sharp and predictable backlash. Many of these laws have already been challenged. One challenge in particular—a requirement that private sales undergo background checks—resulted in a (partial) win for the plaintiffs last week in Virginia circuit court in Elhert v. Settle. The case, and the court’s opinion, raise a set of interesting new questions moving forward.
The law at issue requires that, with limited exceptions, all firearm sales must be preceded by a criminal history background check. Under federal law and pre-2020 Virginia law, only when firearms were sold by licensed dealers (often called FFLs for Federal Firearm Licensees) did the prospective purchaser have to undergo a background check. (This is the so-called “gun show loophole” because purchases from non-licensed persons at gun shows do not have to go through background checks.) A group of individuals and gun-rights organizations sued, claiming that the private-sale background check requirement violates the Virginia state constitutional right to bear arms, which the court treated as co-extensive with the Second Amendment. One of the plaintiffs is 18 years old, and so cannot obtain a handgun through an FFL because federal law does not let licensed dealer sell handguns to those under 21. (The Fifth Circuit has upheld that law against constitutional challenge.)
First, the court concluded that the proper test to apply to these types of challenges is the history and tradition framework advocated most prominently by then-Judge Kavanaugh in his Heller II dissent. It was also the position adopted by Justice Thomas (joined by Justice Kavanaugh, but only Justice Kavanaugh) in his recent dissent from the denial of certiorari in Rogers v. Grewal, as I’ve written about. The court in Elhert framed the question this way:
The two frameworks proposed by the parties are the following: (1) a history-and-tradition framework from Heller and McDonald, and (2) a sliding scale of heightened scrutiny as applied by the United States Fourth Circuit Court of Appeals. The Court rejects the sliding-scale framework because it is inconsistent with the text of the right to keep and bear arms and inconsistent with the guidance in Heller and McDonald. Three discrepancies have led the Court to this conclusion.
The three reasons the court gave were: (1) a sliding scale is forbidden interest balancing, (2) “the sliding-scale framework too easily resorts to intermediate scrutiny, which is not compatible with fundamental rights,” and (3) the sliding scale “eliminate[s]” the word “bear” in the Amendment. Echoing language from a lot of pro-gun advocates, judges, and scholars, the court said:
The sliding-scale framework replaces the analysis of historical justifications with conjecture about a laws burden, guesswork on where the burden places the law on the scale, and empirical judgments about what justifications are heavy enough to balance the scale. It is difficult to imagine a test sounding more like interest balancing than a sliding scale of burdens and justifications.
But, of course, this is exactly how many rights are assessed, including to take the most the obvious example, the First Amendment. Courts expressly drew on that right’s jurisprudence when fashioning this approach. The approach can also be seen in the abortion context, where the Supreme Court’s recent decision in June Medical actually hinged on questions about the law’s burden, the nature and impact of that burden on the right, and empirical and scientific evidence about the justifications for that burden. (Even the Chief Justice’s concurrence, as I’ve noted, was squarely focused on questions of burden.) It is hard to see how it’s okay for courts to “interest balance” free speech and abortion rights but not gun rights; it seems to me the advocates’ reasons for rejecting tiers of scrutiny in the Second Amendment either ought to be applied across the board to require a wholesale revision in how rights are treated in the courts or be seen as bare rhetorical tools to win cases.
Second, after concluding that history and tradition are the guide, the Elhert court found that the private sale background check requirement is facially valid. Even though the law covers “private sales” and not the “commercial sales” that Heller said can be restricted (the court finding a distinction there that eludes me), the court concluded that the same rationale applied in both cases. “[T]he Court is at a loss as to how the historical justifications of preventing felons and the mentally disabled from possessing firearms would allow conditions on commercial sales and not also justify conditions on private sales.” In short, “[s]o long as the background check is limited to preventing a longstanding prohibition on a historically justified category, it does not violate the right to keep and bear arms.”
Third, the court struck down as unconstitutional the private sale background check requirement as applied to 18-20 year olds. The reasoning is a bit hard to follow, but to me it looks something like this: (1) federal law bars FFLs from selling handguns to those under 21, (2) federal law requires that FFLs who facilitate private transfers take the gun into inventory and record it as an acquisition before transferring it, (3) the NICS background check system automatically rejects handgun transfers to those under 21, and (4) therefore the Virginia law deprives those under 21 of the right to a handgun. Because the court concludes that those under 21 have a right to buy a handgun, the Virginia law cannot constitutionally be applied to them.
Second Amendment methodology is a major flashpoint in current debates over the right to keep and bear arms, but so far every federal appeals court to face the question has rejected the history and tradition approach in favor of what’s become known as the two-part framework. (As my colleague Darrell Miller notes, these two competing frameworks shouldn’t really been seen as opposing paradigms.) The Elhert court’s approach to methodology may be a signal that the dissenting justices are starting to win over more converts in the state courts.