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, 4, 5.

Part 6. Professor Winkler: Applying the Reasonable Regulation and Solicitor General’s Standards

Mark, you ask a good question about how the District of Columbia’s gun laws will fare under the reasonable regulation standard used universally in state constitutional law and the heightened scrutiny proposed by the Solicitor General. The answers are not obvious and it would be no surprise if the Supreme Court in District of Columbia v. Heller upheld or invalidated the District’s challenged gun laws under either standard.

First, the reasonable regulation standard. This is not the same as “rational basis” review. The reasonable regulation standard asks whether the law is so burdensome as to effectively nullify or eviscerate the right to keep and bear arms. Laws designed to completely disarm the people destroy the right rather than regulate it. But, due to the valid public safety concerns underlying most gun laws, the courts presume their constitutionality. State courts will invalidate a burden as unreasonable only when the cumulative effect is to destroy the right or when the law imposes an arbitrary, irrational burden on an individual.

Reasonable regulation is deferential but not unlimited, and the District’s laws may or may not satisfy that standard. On the one hand, state courts have consistently upheld categorical bans on particular types of firearms, such as machine guns, sawed-off shotguns, and even handguns, so long as there are available alternatives (usually ordinary shotguns). On the other hand, the District’s laws here are more than just a handgun ban. They include a requirement that shotguns, which are lawful, be stored disassembled, making them less accessible for self-defense. Added together, one could imagine the Justices finding this constellation of bans effectively nullifies the right.

Of course, it could and maybe should go the other way: handguns pose an unusually large risk of being used for suicide and of causing child accidents, making their regulation inherently reasonable. And the disassembly mandate is consistent with Founding-era gun control, such as safe storage laws that required gun powder to be kept stored on high floors (and thus relatively inaccessible for quick self-defense). Gun owners still have the right to possess shotguns, which can be easily assembled when necessary for hunting, defense of the state, and some forms of self-defense. Arguably, the District’s inhabitants have sufficient alternative means to exercise their right.

The Solicitor General’s amicus brief is not the model of clarity. The discussion begins with an explicit call for reasonableness review. The relevant heading states that “the Individual Right Guaranteed by the Second Amendment is Subject to Reasonable Restrictions and Important Exceptions.” The brief goes on to state that the Second Amendment “allows for reasonable regulation of firearms” and “[t]he question remains whether the restriction is reasonable.” But then the brief unexpectedly shifts gears and announces that courts should apply “heightened scrutiny” of laws with “no grounding in Founding-era practice.” Included in this category is a complete ban on handguns – even though the Solicitor General’s brief admits that Founding-era militia regulations regularly dictated what arms were permissible.

There is not likely to be much practical difference between the Solicitor General’s standard and reasonable regulation. According to the brief, the Court should consider two things: the “the practical impact of the challenged restrictions on the plaintiff’s ability to possess firearms for lawful purposes (including the nature and practical adequacy of the available lawful alternatives)” and “the strength of the government’s interest in enforcement of the relevant provision.” The second factor is practically irrelevant because the public safety objectives of gun control are sufficiently compelling to meet even the most rigorous scrutiny. So the key is the first factor, which, like the reasonable regulation standard used in the states, turns on the availability of alternative means of exercising the right.

One factor that may weigh on the Court is that the District’s ban on handguns makes that jurisdiction an outlier in terms of gun control. Only a few other municipalities, and no states, have similarly broad bans on this common weapon of self-defense. The Court is often tempted to stamp out outliers. The art may be in crafting an opinion that invalidates the District’s laws but still permits most forms of gun control to survive. If the Court can do that, the precise formulation of the standard of review will not much matter.

Mark, I was intrigued by your suggestion that the gun rights debate is more about contemporary culture wars than any commitment to historical accuracy. I hope to say a thing or two about that in a later post. But I’d like to hear more from you. How does the Second Amendment define us? Why is this a right that we use for self-definition, rather than the Sixth Amendment right to counsel? And will we still use the Second Amendment in this way a generation after Heller?