ECHR Ruling on the “Right to Life”

Earlier this month, the European Court of Human Rights ruled that Finnish authorities violated the European Convention on Human Rights by failing to take sufficient steps to prevent a school shooting. (h/t Larry Helfer) From the Registrar of Court’s summary of the facts:

The perpetrator had been given a gun licence by the local police station a few months before the attack. Further to certain Internet postings, including a comment about a film on the Columbine High School massacre “being the best entertainment ever”, he was interviewed the day before the attack by the Detective Chief Inspector of the police station to determine whether he posed a danger to society. The inspector decided that was not the case and there was no need to take his weapon.

The next day, the young man appeared at his school and opened fire, killing nine students and a teacher before killing himself.

Article 2 of the Convention protects “the right to life,” and was the basis of the claim, which was filed by relatives of the shooting victims. It would be an understatement to say that I am no expert in Convention jurisprudence, but it appears that the Court rejected the claim that Finnish authorities failed in their “duty to protect life,” but agreed (6-1) that they failed in their “duty of diligence in the protection of public safety, taking into account the context of the case, that is, the use of firearms and the inherent high level of risk to life.”

Further from the Registrar’s summary:

The crucial question was whether there were measures which the domestic authorities might reasonably have been expected to take to avoid the risk to life from the potential danger the perpetrator’s actions had given an indication of.

The precautionary measure of seizing the gun had been available to the police. It would not have caused any significant interference with any competing rights under the Convention and would not have involved any particularly difficult or delicate balancing exercise. Indeed, the Court of Appeal had said that the gun could have been seized according to domestic law as a low threshold precautionary measure.

The Court thus found that seizing the weapon was a reasonable measure of precaution given the doubts about the perpetrator’s fitness to possess a dangerous firearm. The authorities had thus not observed the special duty of diligence incumbent on them owing to the particularly high level of risk to life inherent in any misconduct involving firearms.

It should go without saying that such reasoning does not translate directly to the United States, given that the Second Amendment (and potentially also the First) does enumerate “competing rights” that could be implicated by an effort to confiscate the guns of someone who had made threats online. Nor does the US Constitution clearly create a governmental duty to protect the “right to life” against threats from other private citizens—hence Justice Blackman’s impassioned dissent in DeShaney.

But there are counter-currents as well. Scholars like Leila Nadya Sadat and Madaline M. George have recently written about U.S. obligations under international law (not the Convention itself) to engage in due diligence in protecting citizens from gun violence. And within the framework of domestic law and politics, scholars and advocates are increasingly emphasizing the constitutional interests (not “just” policy interests) in favor of gun regulation—whether through the “constitutional case for gun control,” or the right not to be shot, or briefs emphasizing the human toll of gun violence.

The ECHR ruling, in short, interestingly demonstrates—though of course does not resolve—debates that are percolating in the US gun debate.

Scholarship Highlight Interview: Sheila Simon on Second Amendment Sanctuaries

Sheila Simon, Assistant Professor of Law at Southern Illinois University School of Law, recently published a fascinating paper about gun sanctuary ordinances – On Target? Assessing Gun Sanctuary Ordinances that Conflict with State Law, 122 W. Va. L. Rev. 817 (2020) – which she was generous enough to discuss with me in our most recent scholarship highlight.

In addition to her academic work, Professor Simon has held a variety of positions in state and local government (she was Lt Governor of Illinois from 2011 to 2015), so she has an especially good professional and practical vantage point on the state-local dynamic in play here. And, as we discuss in the interview, Illinois is a particularly useful case study, given that the preemption movement and the gun sanctuary movement both kicked off there. The paper provides a nuanced look at the costs and benefits of sanctuary ordinances, and is well worth a close read.

And if you haven’t already, check out Darrell’s conversation with Shawn Fields on the same topic!

Scholarship Highlight Interview: Natalie Nanasi on Disarming Domestic Abusers

I recently had a chance to talk with Natalie Nanasi, Assistant Professor of Law at SMU Dedman School of Law and Director of the Judge Elmo B. Hunter Legal Center for Victims of Crimes Against Women. Prof. Nanasi has written a lot of incisive scholarship on issues including immigration, domestic violence, and feminist legal theory. In our chat—video below—we talked about her latest piece, “Disarming Domestic Abusers,” which is forthcoming in the Harvard Law & Policy Review, and raises really important and interesting questions about how best to draft, implement, and litigate rules about guns and domestic violence.

Here’s the abstract:

Guns and domestic violence are a deadly combination. Every sixteen hours, a woman is fatally shot by her intimate partner in the United States; the mere presence of a gun in a domestic violence situation increases the risk of homicide for women by 500 percent.

Recognizing these risks, federal law and some states prohibit domestic abusers from possessing firearms. But these laws are not being enforced. Perpetrators of domestic violence are rarely ordered to surrender firearms, and even when they are, there are often no mechanisms to ensure that weapons are safely relinquished.

This Article proposes strategies to disarm domestic abusers, proceeding in three parts. First, it describes legislation that would prohibit perpetrators of intimate partner violence from owning or possessing firearms. Next, it explains the mechanisms required to implement that legislation. Finally, it recommends litigation strategies to ensure meaningful enforcement. Only all three, working in together, have the potential to prevent the gun-related deaths of intimate partners.

Interview here:

Scholarship Highlight: Jennifer Tucker on Public History and Guns

Second Amendment scholars naturally spend a great deal of time and energy focusing on questions about the history of gun rights and regulation, but less time investigating questions about how that history is or should be presented to the public in venues like museum exhibits. Historian Jennifer Tucker (Wesleyan) has done as much as any scholar I know to illuminate such questions, including (as she puts it):

how do firearms differ from other types of material culture in relation to their own historical contexts, and in how they are understood by museum visitors (and curators)? Do museums permit or encourage critical research? What can be done to improve museum/researcher relations? What is the place in firearms museums of the depiction of gun violence? How do museums give insights into history that differ from the accounts available in books?

Through the end of July, the Journal of the History of the Behavioral Sciences is making freely available a really fascinating interview that Prof. Tucker recently did with David Serlin (UC San Diego) about public history, COVID-19, and guns. As she puts it in the interview, “the historical study of gun technologies merits more attention than it currently receives. The study of guns and their social and cultural practices is a perfect example of the importance of inserting the study of technological developments into the history of politics and society.”

You can read the whole thing here. The discussion of guns begins around page 5, and there are some interesting graphics throughout, including of the NRA Firearms Museum.

An Alternative Answer in NYSRPA

[This discussion from Joseph Blocher and Reva Siegel is cross-posted from Oral Argument 2.0]

New York State Rifle & Pistol Association Inc. v. City of New York

No. 18-280 – Argued December 2, 2019

At Issue

Whether a New York City rule banning the transportation of a licensed, locked, and unloaded handgun to a home or shooting range outside city limits violates the Second Amendment, the Commerce Clause, or the constitutional right to travel.


  • Paul D. Clement, for the petitioners
  • Jeffrey B. Wall, for the United States, as amicus curiae, supporting the petitioners
  • Richard P. Dearing, for the respondent

Background and Case Commentary

In New York Rifle & Pistol Association, Richard Dearing—arguing for the government—faced an unusual challenge: Defending the constitutionality of a gun regulation that had already been repealed and replaced by a state statute. That development almost certainly rendered the case moot, and indeed three-quarters of the oral argument focused on the question of mootness.

But some of the Justices also wanted to discuss the constitutionality of the repealed regulation and the scope of Heller’s protections outside the home—and related merits questions we address here. The repealed regulation would have effectively prevented residents of New York from transporting their weapons out of the city, for example to a shooting range or a second home. This was seemingly a unique and relatively recent rule—not the kind of “longstanding” restriction approved as “presumptively lawful” in Heller. Moreover, while the Second Circuit had, in a divided opinion, found that the regulation satisfied intermediate scrutiny, the City could offer little evidence for its effectiveness in preventing gun crime. These merits issues, lurking in the “background” of the case, have received less attention to date.

Dearing, who was making his first-ever Supreme Court oral argument (against veterans Paul Clement and Jeff Wall), did a superb job arguing that the case is moot. But the posture of the dispute made it difficult for Dearing to defend the merits of the now-repealed law or address the government’s compelling interest in regulating guns.

Justice Alito had an exchange with Dearing (at pp. 52-53 of the transcript) in which Dearing, in hindsight, might have more clearly and emphatically defended the government’s authority to adopt the now-repealed law.

The Justice asked “Mr. Dearing, are the – are people in New York less safe now as a result of the enactment of the new city and state laws than they were before?” Dearing responded, “We – we no, I don’t think so.” Justice Alito pressed the point: “Well, if they’re not less safe, then what possible justification could there have been for the old rule, which you have abandoned?” Dearing replied that the prior rule made it easier for law enforcement to verify whether a person transporting a gun in public had a license to do so.

But then the Justice asked another follow-up—the question we address below, whether “The Second Amendment permits the imposition of a restriction that has no public safety benefit”—and Dearing yielded the premise of the question. With respect, as our proposed answer highlights, we think that Dearing could have stood his ground and defended the state’s prerogative to enact a law that might produce a “public safety benefit”—even if those benefits cannot be empirically validated.

To be clear, Dearing was focused on addressing the case’s mootness, not defending its prerogative to adopt the now-repealed regulation, and as we have observed, given the posture of the case, rolling out a more expansive account of the state interest would have been hard to do at oral argument. (With the benefit of time and space, we do so in a separate blog post here.)

That said, it does seem critical to assert that government has compelling interests in regulating guns in ways that cannot always be validated empirically, both because government needs the discretion and flexibility to respond to local circumstances and emergency conditions and because government needs to regulate in ways that preserve public confidence and trust.

New York State Rifle & Pistol Association Inc. v. City of New York on Oyez

Key Questions from Oral Argument

Justice Alito (45:12): So you think the Second Amendment permits the imposition of a restriction that has no public safety benefit?

Reva Siegel and Joseph Blocher: Your honor, two quick points on the concept of “public safety benefit.” First, new forms of gun regulation—like new forms of gun technology—won’t come with a deep empirical record one way or the other. But that fact should not prevent government from trying to address a problem in new ways. We need the states and local governments as laboratories of experimentation attempting to fashion locally appropriate solutions to complex problems of gun violence. Heller doesn’t limit those laboratories to repeating only those experiments they have tried before, nor should the government have to face the impossible burden of proving that a new law will certainly save lives.

Second, even when government lacks data showing that a particular gun law saves lives, the law might still provide an important benefit. The public harms of gun violence reach far beyond crime and injury, and the government’s interest is correspondingly broad as well. This Court has repeatedly recognized—including in strict scrutiny First Amendment cases like Williams-Yulee—that the state has an important and even compelling interest in promoting the public’s confidence and sense of security in institutions like courts and schools. The Court should similarly recognize the importance of such interests in the Second Amendment context.

Three Questions about the Second Amendment and the Temporary Closure of Gun Stores

The closure of “non-essential” businesses in response to the spread of Covid-19 raises a host of difficult legal questions. Among those questions, of course, are some involving right to keep and bear arms. Put simply: Does the Second Amendment permit gun stores be temporarily closed?

Some advocates and commentators have suggested that this is an easy question with a straightforward answer—temporarily closing gun stores is a per se unconstitutional infringement of the right to keep and bear arms, tantamount to a “suspension” of the Second Amendment (or perhaps a “ban”). But that kind of categorical conclusion belies the genuinely complex and interesting constitutional questions that such closures raise. Consider at least three.

  1. Are Gun Stores Different than Other Closed Businesses?

Part of the opposition to gun store closures seems to be rooted in a sense that gun stores are being unfairly targeted—a view consistent with the broader assertion that the Second Amendment is being treated as a “second-class right.”

Without more, it is hard to see how this argument gets very far. The response to the Covid-19 pandemic—a challenge unlike anything the nation has faced in at least a century—has led to the closure of many businesses and institutions important and even necessary to the exercise of constitutional rights. If anything, gun stores seem to be receiving special solicitude, as in the recent Department of Homeland Security (DHS) memo suggesting (albeit in purely advisory fashion) that “essential” workers should include those “supporting the operation of firearm or ammunition product manufacturers, retailers, importers, distributors, and shooting ranges.”

Whatever the policy reasons for this decision, the constitution does not seem to require it, any more than it requires carve-outs for other institutions whose closure impacts the exercise of constitutional rights. Members of congregational religions cannot engage in free exercise. Public school students cannot receive the free educations guaranteed to them by the vast majority of state constitutions. Closing bookstores obviously impacts the freedom of speech, prohibitions on public gatherings essentially forbids peaceable assemblies … the list goes on.

The fact that those rights are temporarily burdened is cause for concern, and civil libertarians are not wrong to keep a close watch on powers the government claims in a time of crisis. But those burdens are not categorically unconstitutional, and it is hard to see why gun stores should be entitled to some kind of special exemption above and beyond those claimed by houses of worship, schools, bookstores, and the like.

To be sure, some gun rights advocates have argued that in fact the Second Amendment is first among equals—“America’s First Freedom”—and so should receive protection above and beyond that of other rights. (Indeed, in some cases this seems to be the actual thrust of the “second-class right” argument.) But unless and until that proposition gains acceptance, courts’ response should probably be the doctrinal equivalent of, “Don’t make this about you.”

That of course does not mean that the government should or must close gun stores—only that the question is one of policy and politics, and is not dictated by the constitution.

  1. What Constitutional Interests Are at Stake?

The fact that gun store closures are not uniquely problematic or per se unconstitutional does not mean that they’re categorically constitutional, either. As with the closure of other constitutionally-relevant institutions mentioned above—houses of worship, schools, bookstores, and the like—there are colorable constitutional questions about the scope of the government’s authority in these extraordinary circumstances. Getting traction on those questions means getting some clarity on some basic elements in the calculus. Assuming that the doctrinal analysis will involve (whether explicitly or not) some kind of scrutiny, that means—at the very least—being precise about the constitutional interests at issue and the governmental interests being asserted.

As to the former, some arguments against gun store closures have misapprehended the private rights at stake. Suspending retail gun sales is not a direct prohibition on self-defense, as some have suggested, nor even a prohibition on armed self-defense. Anyone who possesses one of the roughly 400 million guns in circulation in the United States can still use it for self-defense (subject to the still-applicable legal rules) whether or not gun stores are open. Likewise, closing gun stores does not amount to a prohibition on gun possession. If you have a gun, you can keep it. Nor do these orders affect the right to carry a gun for protection consistent with existing state law.

The burden, of course, falls on those who don’t have guns or—and this matters, too—don’t have the guns that they’d like to have for the constitutionally guaranteed purpose of armed self-defense, which Heller tells us is at its apex in the home. For these people, closing gun stores is undoubtedly a significant burden. Some might seek to purchase from a non-licensed dealer—i.e., from a source other than a store. For obvious reasons, it is hard to know how many guns are sold every year by non-licensed dealers, but even conservative estimates put it at an appreciable percentage (i.e., many millions) of guns.

Even that avenue might not be legally available in some states, though. If a state requires background checks for all sales—rather than just those from licensed dealers, which is the federal rule—then rules shutting down the state background check system (or, for that matter, licensing system) amount to a total (albeit temporary) prohibition on legal purchase.

As noted above, that’s not necessarily any different from the burdens being imposed on other constitutional rights, from free exercise of religion to freedom of speech. But that doesn’t mean it’s not a burden. One factor in assessing that burden is the length of time—and that, of course, is one of the many, many unknowns. A temporary, short-term prohibition on purchase is, after all, simply a waiting period. Courts have upheld waiting periods, licensing requirements, background checks, training requirements, and other delays, and there’s no reason to think that they’re categorically unconstitutional. In short, a temporary suspension of the ability to buy a gun from a licensed dealer does not necessarily amount to a prohibition on the right to keep and bear arms. But the broader and deeper that the suspension lasts, the more significant the burden becomes.

A separate question here is whether the gun stores themselves might assert a Second Amendment right to sell guns. Heller noted that the Second Amendment is consistent with “laws imposing conditions and qualifications on  the  commercial  sale  of  arms,” but there has been some important litigation on the question. Perhaps the most prominent case is the Ninth Circuit’s decision in Teixeira v. County of Alameda. The court there concluded, inter alia, that the Amendment “does not confer a freestanding right on commercial proprietors to sell firearms.”

  1. What Governmental Interests Are At Stake?

Finally, it is important to be clear on what governmental interests are being asserted—that is, what the government is seeking to accomplish by shutting down gun stores. I can think of at least two possible reasons.

The most obvious is that gun stores, like all businesses, are potential sites for transmission of Covid-19. Shutting them down temporarily is, like shutting down bookstores or clothing stores or any other retail establishment, part and parcel of the larger effort to slow the virus’ spread. The broader the orders, the easier it is to see this rationale at work—it is not as if gun stores are being singled out, after all.

That said, it is also worth noting which establishments are being labeled “essential” and allowed to stay open—liquor stores have often been singled out in this regard. If disease-prevention is the reason for the closures, then the argument becomes stronger that whatever works for those businesses (online payments, curbside transfers of merchandise, etc.) might be made to work for gun stores as well. At the very least, as Josh Blackman suggested here, it is worth asking whether gun stores might be able to sell guns in a sufficiently safe (vis-à-vis the virus) manner, roughly akin to how restaurants and other businesses are doing.

But perhaps virus-transmission is not the only motivation behind the restrictions. After all, as gun rights advocates have strenuously argued in recent weeks, the unrest and fear brought on by the pandemic might change benefits and costs of gun ownership itself. For evidence of the asserted benefits, one need look only to statements touting the current moment as a reminder of what the Second Amendment is for, and to the market itself, which has seen a huge spike in sales of arms and ammunition in recent weeks. Many people seemingly feel that armed self-defense is more important now than ever before.

But, of course, the same factors that motivate some people to buy guns as a means of safety will lead others to be and feel less safe. How to accommodate these competing interests is a standard, and difficult, question for Second Amendment analysis. It is not hard to imagine the potentially heightened dangers of various kinds of gun misuse in the current situation: increased gun-related domestic violence, deaths by suicide, accidental shootings (especially of children, who are home from school with distracted or remotely working parents), “false positive” defensive gun uses, and the like.

If the “real” reason behind temporarily closing gun shops is to mitigate these kinds of gun-related risks and harms, then the store closures present standard Second Amendment questions (roughly akin to those in the zoning cases like Teixeira) and should be analyzed as such. In resolving those challenges, courts should presumably give due weight to historical practice during times of emergency (which Darrell is blogging about later this week), and the private and public interests at stake.

In practice, it seems that advocates have little to fear in most places—most shutdown orders have exempted gun stores from closure, and the DHS order this weekend may well give them further support. (Even as I’m writing this, New Jersey has announced that gun stores will now be considered “essential” businesses.) That suggests that there’s no widespread political process failure here, and that the question of whether gun stores can or should be closed can continue to be worked out by the political branches without unnecessary reliance on courts and the Second Amendment.

Why Regulate Guns?

[This post by Reva Siegel and Joseph Blocher was originally published on the Take Care blog on 12/2 and and is cross-posted there.]

The Supreme Court is about to hear argument in its first major Second Amendment case in nearly a decade. The regulation in New York Rifle & Pistol Association v. New York (NYSRPA), which restricted transport of guns outside the home, has been repealed and replaced with a state law that seems to render the case moot. But if the Justices do not declare the case moot, they are expected to expand protections for the right recognized in District of Columbia v. Heller in 2008. Gun advocates are urging the Court to expand Heller beyond the home and to reject the current approach to Second Amendment law in favor of more stringent doctrinal alternatives. If the Court goes down that road and mandates closer scrutiny of governments’ justifications for regulating guns, the ruling could call into question the constitutionality of mainstream laws restricting high capacity magazines or requiring permits for carrying loaded weapons in public places like Walmart.

We write to focus attention on a taken-for-granted feature of the current framework that escalates in importance as the Court applies a more stringent standard of review: the state’s interest in regulating guns. Courts generally recognize that the government has a compelling interest in preventing wrongful shootings. But mechanical recitation of this public-safety interest has blocked consideration of the different communities and the different constitutional values that public safety regulation of guns serves. If the Court mandates increased scrutiny of gun laws, demanding evidence that a law is narrowly tailored to achieve the state’s interests—without properly accounting for what those interests really are—the Court is likely to create a framework that over-protects gun rights and invalidates gun legislation that the public has legitimate interests in enacting. Only by considering the different communities protected and different values vindicated by gun laws can judges determine whether, in a given case, the government has sufficient reasons for enacting a particular restriction on gun use, and what kinds of evidence are appropriate to support the government’s case.

NYSRPA arrives at the Court after years of claims by gun rights advocates that lower courts are “nullifying” the Second Amendment or treating it as a “second class right.” There are empirical reasons to doubt this claim, but in this post we raise a different reason it misdescribes the law. In short: case law narrowly accounts for the states’ important interests in regulating and so is likely to skew analysis if the Court demands closer scrutiny and narrow tailoring. Far from relegating the Second Amendment to a “second class right,” this narrow account of state interests has put the government at a disadvantage it does not necessarily face in other areas of constitutional law.

The state interest question is an important one for the Court to address in NYSRPA. Young Americans who have mobilized against gun violence under the banner of March for Our Lives (MFOL) filed an amicus brief that advances the state interest analysis, by making visible different communities that gun laws protect and important constitutional values that gun laws vindicate. The brief “presents the voices and stories of young people from Parkland, Florida, to South Central Los Angeles who have been affected directly and indirectly by gun violence,” and paints a graphic picture of the direct and indirect costs of gun violence on young people, in an effort to “acquaint the Court with the pain and trauma that gun violence has inflicted on them, and the hope that their ability to advocate for change through the political process affords them.”

The MFOL brief recounts the stories of young Americans who have survived gun violence and turned to the political process in an effort to manage the experience. They seek to persuade others of the importance of enacting gun safety laws that would protect their families, their friends, and themselves from similar violence in the future, and that would make possible safe places to assemble and to learn. The stories in the MFOL brief show that gun laws protect many communities and promote many goods—the laws surely serve state interests beyond the prevention of specific shootings.

Guns in schools do much more than threaten individual students with injury. One recent headline reported “356 victims” over the past ten years—counting only those killed or injured in 180 school shootings during that period. But even if one focuses only on students present in those schools, the true number of students victimized by gun violence is many hundreds times higher than that. Consider the children who hid, or fled, or were marched out of school with their hands in the air, or who lost friends, or (as powerfully described in the MFOL brief) watched their friends die, or wake up with nightmares. Anyone present in a school where a shooting takes place runs a risk of suffering lifelong trauma. By one count, approaching a quarter of a million school children have experienced school violence since Columbine. Through graphic accounts by survivors, the MFOL brief makes plain that shootings reverberate through society ravaging the lives of many more people than those who are shot. Shootings tear through urban communities. They haunt families, and transform the experience of neighborhoods and schools.

The managerial language of public safety does not do justice to the reasons individuals and groups seek to enact gun safety laws.  The “young people coming of age in an era of school shootings and rampant urban gun violence” entering politics to enact gun laws are exercising constitutionally protected freedoms of many kinds as they made plain in naming their movement “March For Our Lives.” When government legislates in response, it is doing more than preventing particular deaths. It is practicing responsive local democracy that simultaneously affirms the lives and voices of a new generation of citizens, affirming the long-standing role of states as laboratories of democracy, as the MFOL brief explains, “to devise solutions to social problems that suit local needs and values.”

But there is more. Guns and gun violence impact people’s ability to enjoy the full range of their constitutionally guaranteed liberty, including the right to speak, to learn, and to peaceably assemble. For that matter, the government may have a compelling interest in legislating so as to improve public confidence in institutions like legislatures and schools—to demonstrate that these institutions can and will respond to the expressed needs of their citizenry, and promote the interest that all share in inhabiting public institutions and spaces in security and confidence and freedom from fear.

Even in First Amendment cases, the Court has recognized that the government has a legitimate interest in defending values and interests that go beyond remedying or preventing particular instances of wrongful conduct. In Roberts v. Jaycees, for example, the Court upheld a law prohibiting discrimination in public accommodations against a freedom of association challenge, noting that the law was designed to protect citizens “from a number of serious social and personal harms,” that discrimination in public accommodations “deprives persons of their individual dignity and denies society the benefits of wide participation in political, economic, and cultural life,” and that the state’s interest is not limited to “assuring equal access limited to the provision of purely tangible goods and services.”  The Jaycees case is important as it recognizes that public accommodation laws promote equal opportunity for individuals and communities by affirming equality values as well as by fairly distributing access to goods and services. The discussion of state interests in the Jaycees case illuminates the state interests in enacting gun laws as well. It suggests that states enacting gun laws can vindicate individual as well as societal interests. The Court’s analysis in Jaycees further suggests that the government can do more than promote its citizens’ bare interest in survival or freedom from physical harm. Government also has valid interests in protecting forms of public participation in community life, as well as cultivating the confidence of citizens in the responsiveness, effectiveness, integrity, and safety of its institutions.

Consider also a more recent state interest analysis: Chief Justice Roberts’ majority opinion in Williams-Yulee v. Florida Bar, which rejected a First Amendment challenge to a Florida law prohibiting judicial candidates from soliciting campaign funds. The Chief Justice’s majority opinion upheld the challenged law despite applying strict scrutiny. In doing so, the Chief Justice found that the Florida law was narrowly tailored. Not only did the law further the prevention of quid pro quo corruption, but it advanced the “State’s compelling interest in preserving public confidence in the integrity of the judiciary.” Can public confidence in the safety of schools be any less compelling?

This account of the state interests that legislation may serve has important implications for the constitutionality of gun laws going forward. If the government interest in enacting gun laws is understood as an interest in public safety, and public safety is understood as an interest in deterring wrongful shootings, measurable by deaths and injuries that a law can be shown to prevent, then the constitutionality of a gun regulation will depend on an empirical showing. And while there is plenty of good empirical evidence of this kind, framing the means-ends analysis in this framework can impose a heavy, and sometimes, insurmountable, burden on the government. The difficulties may be particularly acute for novel laws designed to address novel problems, where evidence (empirical comparisons of jurisdictions with and without such laws, for example) may not always be available, especially given the well-known difficulties in funding research on gun violence. That, in turn, could lead a skeptical judge to strike down a law on the tailoring prong, even while recognizing the compelling state interest in preventing wrongful deaths.

Recognizing a broader interest means that the constitutionality of a gun law need not pivot exclusively on how many shootings it can be shown to prevent. Instead a court may allow evidence that a law contributes to public confidence and a sense of safety in other ways that might not be subject to ready empirical evaluation. The government might still bear the burden, as it always does under heightened scrutiny, but it would not be required to carry that burden using empirical studies. Again, this is how constitutional adjudication sometimes works. In abortion cases, for example, courts do not require empirical evidence of how a particular restriction furthers state interests like the respect for potential life. Or, as the Chief Justice put it in Williams-Yulee, “The concept of public confidence in judicial integrity does not easily reduce to precise definition, nor does it lend itself to proof by documentary record. But no one denies that it is genuine and compelling.”

Too often, the gun debate is presented as if there are constitutional rights on one side (that of gun owners) and only nebulous policy “interests” on the other. But that frame misses precisely what is hard about the gun debate, and which our alternative conception of the state interest can potentially help show: Both sides feel urgently that they must do all they can to keep themselves and their children safe from gun violence. Both sides can appeal to constitutional values. As Justice Stevens recognized in McDonald, “in evaluating an asserted right to be free from particular gun-control regulations, liberty is on both sides of the equation. Guns may be useful for self-defense, as well as for hunting and sport, but they also have a unique potential to facilitate death and destruction and thereby to destabilize ordered liberty. Your interest in keeping and bearing a certain firearm may diminish my interest in being and feeling safe from armed violence.”

Gun owners regularly point to reassurance they feel in owning or carrying guns, even knowing that only a small fraction of them will ever use a gun in self-defense. As the stories in the MFOL brief powerfully demonstrate, advocates of regulation seek the same piece of mind through democratic politics. The Constitution is on both sides.

SCOTUSBlog Symposium: Disrupting the consensus on Second Amendment doctrine would be a mistake

[This post is part of a symposium on New York State Rifle & Pistol Association v. City of New York, hosted on SCOTUSblog and is cross-posted there.]

Joseph Blocher is Lanty L. Smith ’67 Professor of Law at Duke Law School, where he co-directs the Center for Firearms Law. Eric Ruben is Assistant Professor of Law at SMU Dedman School of Law and a Brennan Center Fellow. Along with Darrell A.H. Miller of Duke Law School, they filed an amicus brief in support of neither side in New York State Rifle & Pistol Association v. City of New York.

In one sense, the stakes in New York State Rifle & Pistol Association v. City of New York couldn’t be lower: The challenged regulation, a one-of-a-kind New York City restriction on transporting licensed handguns outside city limits, has already been repealed, arguably rendering the case moot. But when it comes to Second Amendment doctrine and methodology, the stakes are higher than they’ve been in a decade. If the petitioners have their way, the Supreme Court could reject the mainstream approach for deciding Second Amendment questions in favor of a more radical test focused solely on “text, history, and tradition” and without consideration of contemporary realities of guns and gun violence. That would be a mistake.

The methodological debate animating this case began 10 years ago in District of Columbia v. Heller, in which the court held that the Second Amendment protects an “individual” right to keep and bear arms for private purposes like self-defense, and that the right—like all constitutional rights—is subject to regulation. But, aside from listing some “presumptively lawful” measures, the court did not identify a doctrinal mechanism to evaluate those regulations (tiers of scrutiny, adequate alternatives, substantial burden, etc.), instead leaving the task to the lower courts.

In more than 1,000 cases since Heller, the doctrinal dust has begun to settle, and the outlines of constitutional rules and standards have become clearer. Of course, no constitutional right is governed by a single doctrinal test; even the canard that fundamental rights get strict scrutiny—repeated often by the petitioners in this case—is simply false. (Free speech claims, to take one obvious example, are governed by a wide range of tests.) But courts have nonetheless converged, with striking unanimity, on a general framework for adjudicating Second Amendment cases. That framework is frequently called the “two-step test.”

The first step is a threshold inquiry about whether the Second Amendment comes into play at all. As Heller makes clear, there’s no scrutiny necessary for bans on possession by felons (with arguable and limited exceptions for as-applied challenges), or “dangerous or unusual” weapons such as machine guns, or weapons in “sensitive places.” For those regulations that do raise Second Amendment questions, courts proceed to the second step and apply something like a sliding scale of means-end scrutiny to evaluate the relationship between the state interest served by the regulation and the methods employed to further that interest. The more seriously a regulation interferes with the “core” interest of self-defense in the home, the more scrutiny it gets.

This framework is so basic as to be archetypal—constitutional rights adjudication frequently involves a threshold inquiry into the right’s applicability, followed by some context-specific scrutiny of burden, purpose and tailoring. In the First Amendment context, for example, courts regularly ask whether an activity—campaign contributions, for example—counts as “speech” before applying whatever doctrinal test is appropriate.

In short, as some constitutional law scholars have concluded, using the two-part framework means treating the right to keep and bear arms like the fundamental right that it is. The two-part framework, moreover, accommodates both historical analysis and consideration of contemporary costs and benefits; it includes both bright-line rules (prohibitions on laws that go “too far”) and standards. And the fact that it has been endorsed by every federal court of appeals is a resounding vote of confidence.

And yet the petitioners in this case contend that applying this common methodology converts the Second Amendment into a “second-class right.” Courts are too lenient with regard to the tailoring analysis, the argument goes, or misconstrue the historical element of the framework. They say the two-part test has been systematically misapplied.

Of course, “mistakes” are inevitable in any high-volume area of constitutional litigation, and some have undeniably occurred in Second Amendment cases. One court, for example, found that the amendment protected only those “arms” in existence at the nation’s founding—not modern-day weapons like stun guns—a decision overturned by a unanimous Supreme Court. In truth, such mistakes have been relatively rare. Most Second Amendment cases are weak to begin with. This is partly because of Heller itself, which blessed as “presumptively lawful” various regulations that are often challenged, like felon-in-possession laws. It’s also due to the fact that gun politics prevent most stringent regulations from being enacted in the first place—this is not a target-rich environment for gun-rights litigators. When a court errs in upholding an unconstitutional law, however, the typical way to correct the error is through appellate decisions. In this case, by contrast, the Supreme Court is being asked to forgo the typical approach, toss out the consensus methodology and supercharge the Second Amendment with a new set of rules.

The most prominent alternative to the two-part framework is the one articulated by then-judge Brett Kavanaugh in a dissent in the U.S. Court of Appeals for the District of Columbia Circuit: That gun regulations should not be evaluated using any level of scrutiny, but rather by looking to text, history and tradition alone.

Some advocates of this new test hope and expect that it would expand the right to keep and bear arms to some imagined historical ideal, immune from regulation. But that historical image is itself ahistorical: Gun rights and regulations have coexisted for centuries. The laws have changed, because guns and gun violence have changed, but from the very beginning we’ve had versions of safe-storage requirements, bans on “dangerous and unusual” weapons, restrictions on public carrying and even outright bans on public carry – including in supposed gun havens like Dodge City and Tombstone. Guns are a part of American history, but so, too, is gun regulation. For reference, there are more than 1,500 entries in Duke’s Repository of Historical Gun Laws, a searchable, non-comprehensive database of firearms regulations that predate the federal government’s first major intervention into the field in 1934. A properly applied historical test should uphold a lot of gun regulation.

The main problem with relying solely on text, history and tradition, however, is that it doesn’t provide useful guidance for modern-day regulations that respond to modern-day gun violence. The text alone can’t tell you whether a machine gun is an “arm” or whether convicted felons are among “the People” the Second Amendment protects. The 27 words of the amendment are silent on many questions, and history and tradition don’t speak with one voice—there were and are significant regional differences in approaches to gun regulation, as well as divisions between urban and rural areas.

Perhaps in some extreme cases (a total ban on public carry, for example), text, history and tradition would provide relatively clear rules. But for most standard forms of modern gun regulation—restrictive licensing schemes for public carry, for example, or prohibitions on high-capacity magazines or on gun possession by people convicted of domestic violence—all of the work would be done by analogical reasoning. Judges would have to decide for themselves whether certain modern guns or gun laws are relevantly similar to laws from 150 or 200 years ago.

How would such a “test of judicial analogies” work in practice? Is a rocket launcher like a musket, because you can lift it, or is it like a cannon, because it’s so powerful? How is an AR-15 like a musket? Do you compare barrel lengths? Muzzle velocity? Relative deadliness? Such questions place a lot of weight on judges’ own, perhaps unexamined intuitions. In this way, the test of text, history and tradition simply cloaks judicial discretion in an air of objectivity.

In practice, the supposedly historical inquiry eventually comes back, in a roundabout and less transparent way, to the same kinds of questions that are front and center for means-end scrutiny. Good analogical reasoning requires finding relevant similarities, and what’s most relevant about guns is their function, especially their usefulness for what Heller says is the “core lawful purpose” of self-defense. If automatic weapons are prohibited, but semi-automatic handguns are permitted, does that materially interfere with people’s ability to defend themselves in their homes? If so, has the government shown that the prohibition is appropriately tailored to a sufficiently strong interest? The two-part framework makes those questions explicit, rather than laundering them through a subjective form of historical formalism.

Text, history and tradition absolutely matter in the context of the Second Amendment, just as in other areas of constitutional law. But to make them the sole measure of constitutionality wouldn’t give much useful guidance in hard cases, and would invite a lot of unarticulated, potentially hidden judicial discretion and power. Second Amendment scholar Nelson Lund puts the point well: “Pretending to find the answers in history and tradition will encourage either covert judicial policymaking, which is just what reliance on history and tradition is supposed to prevent, or ill-supported historical stories in defense of results that could honestly and responsibly be justified through normal means-end scrutiny.”

The Supreme Court is being asked in this case to reject a doctrinal framework unanimously endorsed by the federal courts of appeals and widely used in constitutional-rights jurisprudence, and to adopt instead a brand-new doctrinal test that would almost certainly invite broad judicial discretion. We hope that the court declines that invitation.

Unbannable Arms?

When it comes to the “Arms” protected by the Second Amendment, the conceptual space is typically divided into two categories. Some weapons, like those that are “dangerous and unusual,” can be banned without raising any constitutional problems. For those that are not dangerous and unusual, the government has to satisfy some requisite level of scrutiny. But—and I hate to do this again, having just made a conceptually similar argument about the Two Part test—there also seems to be a third category: Weapons that cannot be banned without categorically violating the Second Amendment.

Heller itself provides a ready example. The Court there applied no particular form of means-end scrutiny, instead writing that DC’s “handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose.” The Court concluded that handguns have a unique relationship to the core Second Amendment interest in self-defense, and no prohibition on them can be justified:

It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. . . . Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

The availability of other weapons for self-defense—long guns, for example—was therefore not enough to save DC’s law.

What arguably emerges from Heller, then, are not two but three categories of arms. “Dangerous and unusual” weapons are categorically excluded from coverage and can be banned without raising any constitutional concerns. They are the equivalent of libel or securities fraud under the First Amendment. Weapons “in common use” are covered by the Second Amendment, so bans involving them are subject to scrutiny—a prohibition on high-powered rifles or high capacity magazines, for example, must be appropriately tailored to a sufficient government interest. Finally, within the general set of constitutionally covered common-use weapons, some classes cannot be banned, regardless of the efficacy of the law or the government interests involved. This last category includes handguns, which Heller emphasized have a unique connection to self-defense. Are there other classes of arms that are similarly immune from bans? (I try to unpack that and related questions in “Bans,” which is forthcoming soon in the Yale Law Journal and from which some of this discussion is drawn.)

Some judges seem to have concluded that any arm (or “hardware”) in common use is immune to prohibition. In Duncan v. Becerra—an unusual opinion involving California’s restriction on high capacity magazines, which, it’s safe to say, will not be the last word on the subject—the district court concluded that Heller provides a test that is “simple” and “crystal clear.” According to the judge in that case, “It is a hardware test. Is the firearm hardware commonly owned? Is the hardware commonly owned by law-abiding citizens? Is the hardware owned by those citizens for lawful purposes? If the answers are ‘yes,’ then the test is over.”

The test is simply stated, perhaps, but hardly “crystal clear” in practice, for reasons that Eugene Volokh and many others have pointed out ever since Heller. What counts as “common”? For that matter how does one separate one set of “hardware” from another? For purposes of evaluating constitutionality in a case involving high-capacity magazines, does one count all magazines over 10 rounds? 20?

The definitional problems are even harder when one tries to apply them to firearms. Handguns might seem like a natural category, and maybe it is. But if one tries to get much more specific than that, the divisions feel less like a taxonomic exercise and more like an effort to list cosmetic features. Indeed, one common line of argument against assault weapons bans is that they are an irrational effort to target scary-looking guns. But that definitional argument cuts both ways. If would-be regulators can’t define a class of arms with requisite precision, can gun rights advocates do any better?

Fundamentally, though, the problem has less to do with definitions than it does with constitutional principle. Under what plausible account of the right to keep and bear arms should a weapon’s commonality render it immune to prohibition? What Second Amendment value does that protect? Adopting a rule that is “crystal clear” but tracks no underlying constitutional principle means not just elevating form over substance, but actually ignoring the latter.

In their concurring opinion in Caetano, Justices Alito and Thomas wrote that “the right to bear other weapons is ‘no answer’ to a ban on the possession of protected arms,” citing Heller. But the cited passage from Heller (the one quoted above) says only “[i]t is no answer to say … that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed.” And since Heller also emphasizes that “ the American people have considered the handgun to be the quintessential self-defense weapon,” the passage seems to be saying only that there is no adequate alternative to handguns, not that the Second Amendment forbids any consideration of adequate channels of self-defense.

If handguns are the quintessential self-defense weapon, then it seems clear that long guns—including semi-automatic rifles—cannot be. They might be important, and they might be constitutionally protected, but that doesn’t make them immune to prohibition. As the D.C. Circuit put it in Heller II:

We simply do not read Heller as foreclosing every ban on every possible sub-class of handguns or, for that matter, a ban on a sub-class of rifles. . . . [T]he Court in Heller held the District’s ban on all handguns would fail constitutional muster under any standard of scrutiny because the handgun is the “quintessential” self-defense weapon. The same cannot be said of semi-automatic rifles.

In short, the fact that the handgun ban in Heller went too far and was per se unconstitutional does not mean that all “class of arms” rules should be subject to the same treatment.

I suspect that per se rules will continue to gain support among some judges, especially those who see themselves as limiting judicial discretion and providing principled protection for gun rights. I have my doubts that invocation of “bans” will deliver on either of those values.

Part Three of the Two Part Test

In the wake of Heller, state and federal courts have overwhelmingly applied what has come to be known as the “Two Part Test.” The first part is a threshold inquiry about whether the challenged regulation intersects with the Second Amendment at all. If the answer to that inquiry is yes, then courts move on to the second part: Typically some kind of means-end scrutiny, the stringency of which depends on how much the law burdens the “core” right of self-defense.

The desirability of the Two Part Test is, in many ways, the most important question currently before the Supreme Court in NYSRPA. (The constitutionality of the challenged regulation hardly matters, since that regulation—which, as best as anyone can tell, was unique and maybe not even enforced—has already been repealed, rendering the case moot for all intents and purposes.) Along with Darrell Miller and Eric Ruben, I’ve filed an amicus brief in support of neither party generally defending the two part approach against doctrinal alternatives like the test of “text, history, and tradition.”

But there’s another important question about the test, which is not whether it should be adopted, but how many parts it actually has. Although the two step, coverage-protection framework outlined above accounts for the vast majority of Second Amendment litigation, there’s a subset of cases (and a somewhat broader set of dissenting opinions) in which judges don’t apply any kind of scrutiny at all at part two. Instead, they blow right past the tiers of scrutiny, or any other standard doctrinal machinery, and apply per se rules of invalidity.

What justifies these per se rules? So far as I can tell, they are not predicated on a view that the Second Amendment’s right is absolute—a position that Heller clearly rejects—or that it always behaves as a Dworkinian “trump.” Rather, some judges seem inclined to adopt per se rules when they think that a challenged law has gone too far in terms of the burden it imposes on rightsholders. In those situations, no tailoring analysis is necessary or appropriate, and the law must be struck down.

The emerging part three of the two-part test, then, is the application of per se rules to certain especially burdensome gun laws. Heller itself is arguably an example, since the Supreme Court struck down DC’s handgun restriction without application of any standard doctrinal tests. The D.C. Circuit majority in Wrenn effectively made the same move by characterizing the DC public carry restrictions as a “ban,” and thus unconstitutional under any level of scrutiny. And a number of prominent dissenting opinions (including Judge Kavanaugh’s in Heller II) have essentially applied that approach in cases involving prohibitions on certain classes of arms (“assault weapons,” for example), eschewing means-end tailoring in favor of per se rules.

The downside of these per se rules, however, is that they can generate a false sense of clarity while hiding a great deal of judicial discretion. After all, what makes a restriction a “ban” in the first place? Most likely, the label is simply shorthand for saying that it is a really serious, and probably impermissible, restriction on a constitutional right. But that seems like something that should be the result of transparent legal reasoning, rather than a way to short circuit it. To call something a ban subject to per se invalidity is a legal conclusion, after all, not simply a threshold determination about which kind of doctrinal test to apply. It would seem better to reach that conclusion through a more thorough and transparent consideration of how the “core” interest of self-defense is impacted by a particular regulation.

I think that doing so would inevitably involve some kind of adequate alternatives analysis: If really serious burdens on rightsholders should be subject to per se invalidity, then prohibitions—even “bans” on particular arms or activities—that have minimal impact should not. In other words, one must consider not only what a legal regime forbids, but what it permits. Maybe assault weapons are banned, but handguns (the “quintessential self-defense weapon,” per Heller) are permitted, meaning that the constitutional interest in self-defense is itself not being prohibited. And if that’s the case, it means that some judges have gone astray in treating weapons in “common use” as being immune to prohibition.

I’ll have more to say about that particular question in a blog post tomorrow. And I try to address the broader phenomenon—which is not limited to the Second Amendment—in “Bans,” forthcoming soon in the Yale Law Journal. Short version: I have my doubts that the concept of a “ban” is doing any real or defensible work, but that the best case in favor of it would be the functionalist analysis described above.