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, 3.

Part 4. Professor Winkler: The Reasonableness of Reasonableness Review

Mark, you are surely correct that many gun rights advocates will be dissatisfied if Heller follows the unanimous choice of state courts and adopts the reasonable regulation standard to adjudicate gun safety laws. But this in itself is curious. Where is the outcry in the gun rights community about the state constitutional law on the right to bear arms, which for over a century has used the reasonable regulation standard? Gun rights organizations, which know the state law well, have been satisfied with this doctrine at the state level. In fact, those groups often cite the pervasive recognition of the individual right to bear arms at the state level as evidence of the fundamental nature of the right in American history.

But gunners win something important by a Heller decision even if it adopts reasonableness review. First, they win judicial recognition of the individual right to bear arms – a right previously unrecognized as part of the Second Amendment. Regardless of the standard of review, this provides gun rights advocates with a powerful rhetorical tool to use in political debate. Second, they also win the assurance that no city or state could effectively disarm the people. Gun rights advocates stress often that their primary fear is that today’s gun control is a toehold in a larger effort to move the U.S. to a British-style society where all private guns are barred. Disarmament, however, would be abolishment of the right to bear arms rather than a reasonable regulation of the right.

Like you, I have often heard objections to reasonableness review on the grounds that the Second Amendment should be treated like all the other rights in the Bill of Rights and trigger strict scrutiny. Indeed, this is precisely what the D.C. Circuit expressed in Heller below. The problem with this notion is that the other amendments in the Bill of Rights generally do not trigger strict scrutiny. Strict scrutiny is used in only two of the ten provisions in the Bill of Rights, the First and Fifth Amendments. Strict scrutiny is never used in the 4th Amendment, the 6th Amendment, the 7th Amendment, the 8th Amendment, the 9th Amendment, or the 10th Amendment. Most of the Bill of Rights is governed by a range of more deferential standards, including reasonableness.

Even rights that do trigger strict scrutiny only do so some of the time. The First Amendment, for instance, triggers more deferential scrutiny in government as employer cases, commercial speech cases, time, place, and manner cases, and cases involving speech by public school students. Even the bete noir of the constitutional right – the right of privacy – does not always trigger strict scrutiny, as they should know. Abortion choice can be limited by any burden so long as not “undue,” which as Gonzales v. Carhart, the late term abortion decision, makes clear is a highly deferential standard. Lawrence v. Texas, the gay sex case, also used the language of reasonableness. To claim that deferential review is inimical to the First Amendment and other provisions protecting fundamental rights is simply to describe constitutional doctrine inaccurately.

Reasonableness review is especially appropriate for the right to keep and bear arms and is supported by the text, history, and structure of the right. The text offers one of the clearest reasons to reject the argument that the Second should be treated just like the First. Their texts could not be more different. The First says “Congress shall pass no law” while the Second acknowledges the appropriateness of legislation by referring to the “necessity” of a “well regulated” militia. Under settled constitutional doctrine, strict scrutiny is reserved for when courts deem any legislation inherently suspect. The Second Amendment’s text – as well as common sense – suggests that at least some regulation is legitimate, thus the predicate for strict scrutiny is absent.

The history of the right also counsels in favor of courts granting legislatures reasonable leeway to regulate arms for public safety. The Framers had numerous gun control laws, including registration requirements, safe storage laws, bans on firearms in cities, and disarmament of the disloyal and the unfit. Moreover, the history of the right to bear arms at the state level is a long, established tradition of reasonableness review. There is no history or tradition of heightened judicial scrutiny of gun laws.

The structure of the Constitution also counsels in favor of reasonableness review. As my earlier post made clear, strict scrutiny would substantially disrupt the settled state constitutional doctrine on the right to bear arms by imposing a novel, untested federal standard. Not only would this deny the states their traditional autonomy in the area, but would certainly lead to a wave of litigation challenging state and federal criminal convictions and gun control laws.

In a later post, I’ll address how reasonableness review might apply to the D.C. ban at issue in Heller. In the meantime, Mark, I’m curious if you have any thoughts about the role of originalism in Heller. I’ve been surprised that, despite all the scholarly attention to different interpretive methodologies, the briefs on both sides in Heller are remarkably persistent in their reliance on the original meaning of the Second Amendment. As your book makes clear, however, the claims are not all well founded. Any thoughts?