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.

Part 1. Professor Tushnet Opens the Conversation: The Solicitor General and the Appropriate "Standard of Review"

Next week the Supreme Court’s going to hear argument in District of Columbia v. Heller, dealing with the constitutionality of the District’s essentially complete ban on the possession of handguns. It’s the first time in nearly seventy years that the Court will take up basic questions about the Second Amendment’s meaning.

Gun control and gun rights are one of the focal points of our culture wars, which are also an important component of our politics (and I hope to say something about the political implications of whatever the Court does in a later post). Over the past several decades gun-rights proponents have achieved a remarkable success in restructuring the legal debate. An indication: Shortly after Chief Justice Warren Burger resigned in 1986 he gave an interview to Parade Magazine in which he remarked, almost off-handedly, that of course the Second Amendment didn’t protect an individual right to own handguns. Burger was of course a conservative jurist, and he was simply stating the common wisdom of the time. Within a decade the conventional wisdom has shifted. Gun-rights proponents were able, not entirely inaccurately, to call themselves advocates of what they called the “Standard View:” that the Second Amendment did indeed protect an individual right to own handguns and rifles.

Most of the writing on the Second Amendment deals with what really is a basic question: Does it protect a right only in connection with a person’s membership in a state-organized militia, or does it protect an individual right? In this post I don’t want to take up that question, at least in part because the main lines of the arguments are straight-forward: For gun-control proponents, the Second Amendment’s reference to a “well-regulated militia” shows that the right is limited; for gun-rights proponents, the Amendment’s location in the Bill of Rights shows that it protects a right just like the others in the Bill of Rights. There are a lot of other details that get elaborated in the arguments, but it’s remarkable (to me, at least) how narrowly textual and originalist the core arguments on both sides are.

I want to focus here on something different. The Solicitor General has filed an amicus brief that seems to me likely to be quite influential, and it takes an approach to the question presented that’s different and, to some extent, new to the debates. Early in the George W. Bush administration, the Office of Legal Counsel issued a long opinion concluding that the Second Amendment protects individual rights. The Solicitor General agrees, but asks what the standard of review should be for determining whether a regulation of gun ownership and possession is constitutional. What the SG is worried about, of course, is that the Department of Justice has the duty to enforce a large number of federal laws regulating and criminalizing gun ownership and possession.

The SG’s problem with the administration’s gun-rights allies is this: In saying that the Second Amendment protects an individual right just like the individual right protected by the First Amendment, gun-rights proponents want to import the stringent restrictions placed on regulations of speech. But, if you do that, lots of federal gun laws will be unconstitutional. (My favorite example is the case of United States v. Emerson, in which a court of appeals that adopted the individual-rights interpretation nonetheless upheld the conviction of a person who owned a number of guns before he became subject to a domestic violence protection order, and at the instant the order was entered against him he became a federal felon.)

The Solicitor General offers what he says is something like an “intermediate” standard of review. It’s not clear to me that there really is an intermediate standard of review anywhere else in constitutional law, but again I’ll put that aside. What’s really remarkable, I think, is that the SG suggests that the District’s complete ban on handgun possession might satisfy the intermediate standard of review – at least (or so it seems) if the District’s regulations of other weapons, such as long guns, make it possible for residents to get access to working weapons quickly enough to use for self-defense in their homes. To me this looks more like a very weak (“rational basis”) standard of review.

When I listen to the oral argument next week, I’m planning to focus on what the advocates and the justices say about the standard of review if the Second Amendment protects an individual right. Adam, I know you know a lot about the “standard of review” question. What do you think of the SG’s position?