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 parts 1, 2.

Part 3. Professor Tushnet: How Reasonable is a "Reasonableness" Standard?

Adam, compromise is sometimes a good thing, but compromises have to give something to each side. And it’s not clear that settling on a “reasonableness” standard of review is acceptable to the gun-rights side of the dispute here. Certainly the advocates reject such a standard, but that’s to be expected. What matters is whether people who support gun-rights will see a “reasonableness” standard as acceptable – or, perhaps more accurately, whether they will do so after the advocacy organizations they listen to describe what the Court (we’re assuming) has done.

One item supporting my skepticism is that the District of Columbia would be happy to have the case decided on reasonableness grounds. Its brief in Heller specifically argues that the District’s handgun ban is reasonable. Indeed, I can imagine the District’s lawyer arguing – and the Court agreeing – that the Court does not have to decide whether the Second Amendment protects an individual right or only a militia-related right because, on either interpretation, reasonable regulations are constitutionally permissible. But I can’t imagine Heller’s lawyer agreeing to a remand to determine reasonableness, as the Solicitor General suggests, or – of course – to a flat reversal on the ground that the regulation is reasonable.

It seems to me that there are at least two problems with the reasonableness approach. First, as your post indicates, state courts applying a reasonableness standard have held that almost anything short of total prohibition is reasonable. But the District’s regulation looks a lot like a total prohibition on handgun possession. If anything saves it, it is the possibility that District residents have the right to have dismantled rifles or rifles with trigger locks in their homes for self-defense purposes. That strikes me as a pretty strained position.

Second, and maybe more important, when I’ve presented the reasonableness position in talks to audiences interested in the constitutional and policy issues, there are two related questions that come up. Sometimes people ask why the Second Amendment should be any different from the First. By that they mean, We know that governments have quite limited power to restrict free expression rights – they apply a standard of strict scrutiny, the lawyers would say – and we can’t figure out why governments should have a broader power to restrict the right protected by the Second Amendment (assuming that it is an individual right). And sometimes they wonder why the Second Amendment right, which is guaranteed by specific text in the Constitution, can be restricted subject only to a reasonableness test, when the unenumerated right to privacy, not mentioned in the Constitution at all, can be restricted only if the government meets some higher standard of review.

I confess to having had some difficulty even explaining, much less defending, the reasonableness standard in the face of these questions. Do you have any thoughts on how to do so? And do you have any thoughts about the intermediate standard of review the Solicitor General (in my view implausibly) offers?