“Nomological Desperation”: What’s Common in Second and Eighth Amendment Doctrines?

As interpreted by the Supreme Court in Heller, the Second Amendment protects arms that are in common use by law-abiding citizens for lawful purposes. Yesterday, an en banc panel of the Ninth Circuit heard oral arguments in Duncan v. Bonta, a Second Amendment challenge to California’s ban on ammunition magazines that hold more than 10 rounds—also known as large-capacity magazines or LCMs (see my earlier posts on the case here & here). Counsel for the challengers stressed that constitutional protection (absolute, in her view) attaches once an “arm” reaches commonality. When an arm is chosen by the American people in sufficient numbers, a state cannot ban it. After listening to the arguments, Joseph, Darrell, and I—along with one of the Center’s fantastic summer research assistants, Noah Levine—tried to brainstorm other contexts in which the threshold question in a constitutional case—the question of whether the Constitution comes into play—relies on counting or commonality. One analogy we found was to the Eighth Amendment’s bar on cruel and unusual punishment. The more we talked about it, the more some interesting parallels began to surface.

The “common use” test derived from Heller is intuitive, but becomes hard to parse in particular situations. Although I have not seen an answer to the question be determinative in a major Second Amendment case, the test alone opens a can of worms about what counts as common use. As some of the Ninth Circuit judges asked in Duncan, what is the relevance of the fact (assuming it is a fact) that the average number of bullets a person uses when discharging a gun in self-defense is two or three? Does that mean that an LCM is not commonly used in self-defense and so not presumptively entitled to protection? Or is it enough, as the challengers’ counsel argued, that LCMs are commonly possessed by law-abiding citizens? One further question this raises, as Judge VanDyke stressed, is what the denominator is: what instances do we count when figuring out whether the use is common. He noted that it’s very uncommon to need even a single bullet given that a vanishingly small number of individuals will discharge a gun in self-defense. (Although researchers disagree wildly about the prevalence of defensive gun uses—DGUs—they all agree that whatever the total number of DGUs, far more of them involve brandishing a firearm than shooting one.) The oral arguments did not resolve these difficulties.

In its Eighth Amendment jurisprudence, the Supreme Court has often resorted to counting and commonality to determine whether the Constitution comes into play. There, it has concluded that “[t]o determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society.” That inquiry involves, among other things, looking at state laws and practices to discern whether a national consensus exists against a certain practice. In other words, do the numbers show that a practice is common or not. And questions about the denominator plague that line of cases just the same as in nascent Second Amendment jurisprudence. Here’s Justice Scalia dissenting in Roper v. Simmons, criticizing the majority’s decision to count states that have abolished the death penalty in its calculation of those that have rejected the death penalty for 16- and 17-year-olds:

None of our cases dealing with an alleged constitutional limitation upon the death penalty has counted, as States supporting a consensus in favor of that limitation, States that have eliminated the death penalty entirely. And with good reason. Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car. Of course they don’t like it, but that sheds no light whatever on the point at issue. That 12 States favor no executions says something about consensus against the death penalty, but nothing–absolutely nothing–about consensus that offenders under 18 deserve special immunity from such a penalty. . . . The attempt by the Court to turn its remarkable minority consensus into a faux majority by counting Amishmen is an act of nomological desperation.

It may not be nomological desperation, but arguments over the percentage of magazines that are LCMs today, or how widespread the adoption of the multi-shot puckle gun, or how many Winchester repeating rifles were manufactured in the 1860s do seem like an odd kind of nomological obsession for judges and advocates who purport to apply an originalist methodology. Indeed, conservative jurists and advocates often find themselves on opposite sides in the Second and Eighth Amendment contexts. In the former, these actors assert that choices of living Americans determine the scope of constitutional protection. In the latter, they criticize the Supreme Court’s doctrine enshrining an evolving standard that relies on the choices of living Americans. I’ve noted before this embrace of a Second Amendment “evolving-standards-of-utility view”—that whatever happens to be in common use today is protected. As Justice Alito said in a concurrence in Caetano: “the pertinent Second Amendment inquiry is whether stun guns are commonly possessed by law-abiding citizens for lawful purposes today” (his emphasis). To me, that standard fits uncomfortably alongside a broader jurisprudential method that privileges the deeds of the dead over those of living. (As Justice Scalia liked to say, the Constitution is not a living document, it’s “dead, dead, dead”). Besides the conceptual difficulties with determining commonality, I think these broader jurisprudential concerns ought at least to provoke a response from the justices who rely on contemporary numerical figures as a guide to constitutional protection in Second Amendment cases, as did Justice Alito in Caetano (“hundreds of thousands” of stun guns owned today) and Justice Thomas in Highland Park (“roughly five million” AR-style rifles owned today).

Another similarity between the two Amendments is that the commonality test in both gets invoked to cut off the avenues of democratic decisionmaking. If a national consensus develops against a practice, the Eighth Amendment forbids it. If a consensus (it’s not yet clear whether local, regional, or national) develops in favor of an “arm,” the Second Amendment protects it. In another sense, though, commonality cuts in opposite directions. Commonality defeats a plaintiff’s Eighth Amendment claim while it vindicates a Second Amendment one. The Eighth Amendment forbids a state from imposing “cruel and unusual” punishment. The Second Amendment (as read by Heller) permits a state to bar “dangerous and unusual” weapons. The similar wording even in these formulations implies the reason for the resilience of the commonality test in both contexts. If unusual means uncommon, then a practice or arm that is widespread cannot by definition be unusual. To the extent that the Supreme Court is prepared to flesh out the common use test in future Second Amendment challenges, I suspect it will have to grapple with many of the same vexing problems with counting that have occurred in its Eighth Amendment jurisprudence.