ACSBlog: The Blog of the American Constitution Society

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See part 1.

Part 2. Professor Winkler Examines the Appropriate "Standard of Review" and Looks to the States for Guidance

No doubt one of the more interesting aspects of District of Columbia v. Heller is the debate over the appropriate standard of review, assuming the Court finds an individual right to keep and bear arms unrelated to militia service. The vast majority of the scholarly and legal literature to date has focused on identifying the underlying right protected by the Second Amendment. But the Supreme Court’s decision to hear Heller has sparked considerable focus on the standards question. If there is a private individual right to bear arms, how are courts to adjudicate the constitutionality of gun control legislation?

Fortunately for the Court, this question has been asked and answered numerous times in American constitutional law. Forty-two states have constitutional provisions providing for an individual right to bear arms unrelated to militia service and, under these provisions, state courts have ruled on the permissibility of almost every form of gun control. There are hundreds of published state court decisions addressing the constitutionality of restrictions on guns. Interestingly, every single state, without exception and despite wide differences in political ideology and demographics, applies the same standard of review.

Under state constitutional law, any “reasonable restriction” on the right to keep and bear arms is constitutionally allowed. In practice, this means that so long as the government does not completely disarm the citizenry or impose arbitrary burdens on gun owners, gun control laws will be upheld. States have consistently applied this relatively deferential standard for over a hundred years. No state applies strict scrutiny or any other form of heightened scrutiny to gun control.

In light of this uniform state constitutional jurisprudence, any decision by the Court to apply a heightened form of scrutiny will have profoundly unsettling effects on an area of traditional state autonomy. If the Court follows the suggestion of Heller and his supporting amici, strict scrutiny will apply. Although many forms of gun control, such as bans on machine guns, are likely to be upheld under strict scrutiny, the mere fact that gun control laws must be judged with a heightened standard will encourage a tidal wave of challenges by state and federal prisoners and convicts to their gun crimes. The gun laws they were convicted of violating, they will argue, are unconstitutional. Whether or not these challenges are successful, the new strict scrutiny standard will inevitably lead to a complete reworking of the state constitutional jurisprudence on the arms right.

The Solicitor General’s position in Heller seems to be a compromise designed to limit some of the damage that would result from the imposition of heightened review. The Department of Justice does not want to find itself in court defending every one of the numerous federal gun safety laws and reopening settled convictions. Although any individual right to bear arms will open up the floodgates, an intermediate scrutiny might be interpreted to allow enough legislative leeway to save most, if not all, existing gun laws. If so, then the Administration can have its cake and eat it too.

The intermediate scrutiny approach would not be my preferred compromise. I believe the Court should follow the experience and wisdom of state constitutional law. But, Mark, don’t you think that finding some kind of constitutional compromise in this case makes sense?