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, 6, 7, 8.

Part 9. Professor Tushnet: Court Predictions

Ah, reading the tea leaves! Here are the possibilities, I think:

1. The Second Amendment protects a right only in connection with membership in the militia, and there being no such connection here, the District’s law is upheld and the Court of Appeals is reversed.
2. The Amendment protects an individual right, regulations of which are constitutional if they are reasonable in the sense developed in the state-court cases you’ve referred to, and the District’s law is reasonable in that sense, and the Court of Appeals is reversed.
3. The same as (2), except that, because the Court of Appeals didn’t address reasonableness, the case is remanded to it and then to the district court for consideration of the reasonableness of the District’s regulation.
4. The same as (2), except that the record is sufficient to determine that the District’s regulation is not reasonable, so the Court of Appeals is affirmed on different grounds.
5. The Amendment protects an individual right, regulations of which are constitutional if they satisfy a heightened standard of review (something like “intermediate scrutiny”), and the case is remanded to the Court of Appeals to apply that standard.
6. The same as (5), except that the Supreme Court applies the standard and finds the regulation unconstitutional.
7. The Amendment protects an individual right, regulations of which are constitutional only if they satisfy strict scrutiny, and the District’s law can’t possibly survive strict scrutiny, so the Court of Appeals is affirmed.

I think we can rule out #7 – strict scrutiny – because, as you’ve indicated, it would generate enormous uncertainty about seemingly well-established regulations (the example that comes up in the briefs is a ban on private possession of machine guns, with some gun-rights supporters saying that such a ban would not survive strict scrutiny). And I think we can rule out #6, not for any analytic reason but simply because the Solicitor General has proposed the intermediate standard and even he doesn’t support a simple affirmance. There’s a story by Bob Novak in Thursday’s paper suggesting that the SG may retreat a bit from the position taken in the brief, though, and the easiest way to retreat would be to say that perhaps no remand is necessary and that the Court itself can apply the SG’s intermediate standard and affirm the Court of Appeals.

That still leaves a lot of possibilities. My guess is that the Court’s “liberals” would like outcome #1 on the merits, but may think that that would play out badly in presidential politics this year. And I’m pretty sure that Justice Kennedy’s libertarian leanings will incline him to say that the Amendment protects an individual right. Strategically, then, the liberals might be willing to go along with an opinion adopting #2, but even more, I suspect, #3 – individual right, reasonableness, remand to apply the test (maybe with an opinion that sketches out why the regulations might be reasonable despite their restrictiveness as well as why they might not be reasonable because of their reasonableness). The remand might be justified by noting that there are facts that aren’t in the record – how easy it is to convert a rifle with a trigger lock into a rifle that is ready to be fired, for example. (Technically, I can imagine an opinion that finessed the question of whether the Amendment protects a right in connection with militia membership or a pure individual right by saying that, under either approach, the standard for permissible regulations is reasonableness, which has to be explored on remand. My sense is that that’s a bit too cute to fly, although I suspect that the liberals will be making the point in the background so as to influence the way the opinion is worded.)

The advantage, from the point of view of every Justice (I think), of #3 (and #2 less so) is that it sets things up so that the Justices can say to themselves that they’ve made it possible for both sides to claim victory. Gun-rights advocates win the argument they’ve been pushing for many years, that the Second Amendment protects an individual right, and gun-control advocates can say that even the Supreme Court thinks that a total ban on handgun possession might be (or, under #2, is) constitutional.

The remand to apply the reasonableness standard also has the attractive feature (to me, if not to many, or any, Justices) of almost certainly removing the gun issue from the presidential campaign. No candidate’s going to get much mileage out of raising the issue while the proceedings on remand are still going on, as they will be through the election. I understand that gun-rights proponents are upset at the possibility that a complete ban on handgun possible might be constitutional, but – given the public view that reasonable gun controls are a good idea – I doubt that they would be able to present that position in a way that had any political impact while the remand is pending.

So: If I were a betting person, I’d put my money on seeing an opinion – maybe even a unanimous one, although probably with some separate opinions – saying that the Second Amendment protects an individual right not necessarily connected with membership in the militia, that the right can be regulated by rules that are reasonable, that the record is inadequate for the Court to determine whether the District’s rules are reasonable, and remanding to the Court of Appeals and district court to apply the reasonableness test.