Mark V. Tushnet is William Nelson Cromwell Professor of Law at Harvard Law School. He is the author of fifteen books, most recently Out Of Range: Why the Constitution Can’t End the Battle Over Guns. Out Of Range is an honest guide to both sides of the 2nd amendment debate and an insightful analysis of how our view of the 2nd amendment reflects our sense of ourselves as a people. Part of Oxford’s Inalienable Rights Series, Tushnet’s book challenges our views of one of our most controversial freedoms, the right to bear arms. In the article below Tushnet helps us understand this week’s oral arguments in the District of Columbia v. Heller case.
What should interested observers look for in this week’s oral argument in District of Columbia v. Heller? The issue in the case is whether the District’s complete ban on private ownership of handguns – coupled with a requirement that long guns (rifles and shotguns) in private homes have trigger-guards – violates the Second Amendment. The Amendment reads, “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Most reports are likely to focus on the question that’s been at the heart of the gun regulation debate for several decades: Does the Amendment protect a right only for those with some connected to a state-organized militia, as the Amendment’s first clause might suggest, or does it protect a right held by every individual, as its second clause might suggest? And that issue is indeed presented in the case.
But, as things have developed, another issue is more likely to determine the case’s outcome. One reason is that if you make reasonable guesses about the views of each Justice, you probably get at least five supporting the “individual rights” view. Here the usual focus would be on Justice Anthony Kennedy, who has a libertarian streak that’s likely to incline him to accept that view – particularly if doing so does not have radical implications for existing gun regulations.
And that’s the second reason the “militia-related right versus individual right “question has turned out to be less important than it seemed. What’s happened is that everyone (except perhaps the most dedicated supporters of gun control and gun rights) has come to realize that what’s really at stake is this: What does it take to justify a regulation of weapons?
Lawyers ordinarily describe this as a question of the “standard of review” to be applied to regulations. In Heller, there are three possibilities presented to the Court. The gun-rights side has asked the Court to apply “strict scrutiny” to gun regulations. Under that standard, regulations would be constitutional only if they promoted some quite important public purposes, and did a reasonably good job of doing so (the lawyer’s jargon is that the regulations have to well-tailored to serve a compelling interest). The trouble with this standard, from a centrist point of view, is that it makes it at least plausible to argue that a large number of existing regulations are unconstitutional. That would produce, to use a cliché, a flood of litigation. And it’s unlikely that five Justices would knowingly open the floodgates.
The District of Columbia’s lawyers say that regulations should be upheld if they are “reasonable.” Here they draw on a body of law that’s been developed in state courts over the past hundred years or more. There’s been relatively little litigation about the Second Amendment itself, largely because the national government didn’t seriously get into the business of gun regulation until the late 1960s. State constitutions, though, have had provisions parallel to the Second Amendment since the early 1800s, and there’s been a lot of regulation – and therefore a lot of constitutional interpretation – on the state level. Sometimes dealing with state constitutional provisions clearly protecting an individual right to own weapons, the state courts almost uniformly have applied the “reasonableness” standard the District’s lawyers support. And, at least for them, that standard means that courts should uphold any regulation that doesn’t effectively disarm the general populace.
(Of course, one of the questions in the case is whether the ban on handgun possession coupled with the trigger-lock requirement for long guns amounts to effective disarmament. The District says no, but there’s at least a possibility that the Court will adopt the reasonableness standard and then send the case back – “remand” it – to the lower courts to apply it on the basis of additional evidence that might be introduced, for example about how easy or hard it is to take a trigger lock off a long gun.)
Provoking a fair amount of discontent among gun-rights advocates, and apparently some dissension within the Bush administration, the Solicitor-General has come up with a third standard of review. The precise details of his position are complex, and probably not worth too much attention here. What matters is that he has suggested that the Court use an “intermediate” standard of review, or “heightened scrutiny.” Under a standard approach to heightened scrutiny, the courts would balance the public purposes served by a regulation against the degree to which it intruded on the values promoted by the constitutional right: The more important the public purposes, the more intrusive regulations can be, but also, the more intrusive the regulations are, the more important the public purposes must be. The Solicit-General’s brief suggests that the District’s regulations might survive heightened scrutiny, and asks the Court to remand the case.
In reading about the oral argument, then, you should pay attention to the standard of review that the Justices discuss and, especially, how often the word “remand” comes up. That, I think, is where the action will be this week.