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Will the Supreme Court Defend a New Second Amendment Litigation Standard?
The Court has an opportunity to provide much-needed guidance on gun laws to lower courts
The Supreme Court’s current gun-carry case provides an opportunity for a new and clear standard of review for Second Amendment cases. However, if the Court wants that standard to have a real impact, it will need to follow through in a way it didn’t after its 2008 Heller decision.
The case, New York Rifle & Pistol Association v. Bruen, in part sets up the Court to answer how far Second Amendment protections extend beyond the home. Specifically, it will decide whether a state can require applicants for a gun-carry permit to prove they have a “good reason” to carry a gun in public—something beyond a generic desire for self-defense. The answer will directly impact laws that govern about a quarter of the American population. But a change to or clarification of the standard by which the high court says similar cases should be decided could produce far greater consequences.
A Possible New Standard
The most popular standard of review among the justices appears to be “text, history and tradition” (THT). Justice Brett Kavanaugh first developed this standard in a 2011 dissent while on the District of Columbia Circuit. It has since been employed, in part, by Justice Amy Coney Barrett in a 2019 dissent and Justice Clarence Thomas (joined by Kavanaugh) in a 2020 dissent.
Kavanaugh laid out the basic argument in his 2011 dissent when discussing the landmark Heller decision, which held that the Second Amendment protects an individual right to keep and bear arms and established how to interpret that right when deciding other cases.
“Are gun bans and regulations to be analyzed based on the Second Amendment’s text, history, and tradition (as well as by appropriate analogues thereto when dealing with modern weapons and new circumstances)?” Kavanaugh wrote in the 2011 dissent. “Or may judges recalibrate the scope of the Second Amendment right based on judicial assessment of whether the law advances a sufficiently compelling or important government interest to override the individual right? And if the latter, is the proper test strict scrutiny or intermediate scrutiny?”
He argued there was “little doubt” the Court’s opinion in the case set up a THT test. He said the case used a framework derived from examining the words in the Second Amendment as they were understood when written, combining that with the way Americans in the Founding era actually regulated guns themselves. He said a THT test was the proper way to judge gun laws instead of pitting a constitutionally protected right against government interests.
While oral arguments point to THT being the favored standard on the Court, it’s not possible to know what the Court will decide until the opinion is released later this year. But if the Court does want to send a message to lower courts about how to decide gun cases, it will likely need to do so through more than one decision.
Heller itself was a less-than-crystal-clear compromise ruling that sought to strike down a handgun ban in Washington, D.C., without invalidating a cascade of federal gun laws. It provided the basic foundation that the Second Amendment meant something. But it didn’t go a great deal farther than saying Americans could own a handgun inside their own homes. Beyond rejecting tests that balance constitutional rights against government interests, it didn’t lay out a very clear way to judge future cases.
The THT standard is merely an interpretation of what was set forth in Heller, after all. Case law surrounding gun rights is at its bare foundation. The Court waited more than 200 years to make any statement about what the Second Amendment protected. That may be in large part because federal gun laws did not exist for most of that time, but the Court has now taken another decade even to consider building substantially on the foundation it established in 2008.
The Need for Supreme Court Guidance
This lack of direction from the Court has been the main complaint of gun-rights advocates for years. Alan Gottlieb, founder of the Second Amendment Foundation, said the lack of follow-up has led to lower courts largely dismissing Heller.
“I think the lower courts ignored it in two ways,” he told me. “One is saying since it was only about a gun in a home, that’s all it applies to, which obviously isn’t the case. But the lower courts try to limit the reach of Heller that way. The second part is they’ve done it by the standard of review where they talk about intermediate scrutiny, but they really use rational basis.” The rational basis test merely requires a government to have a “rational basis” for a law when balanced against a constitutionally protected right—an extremely low bar for legislators to clear.
Because of Heller’s uncertain reach, most gun laws in liberal-leaning circuits, especially the Ninth Circuit, ultimately have been upheld. Beyond applying Heller’s basic conclusions to the states in 2010’s McDonald v. Chicago and unanimously clarifying that the Second Amendment applies to Tasers and other modern weapons in 2016’s Caetano v. Massachusetts, the Court hasn’t issued an opinion expounding on the Second Amendment. That’s not for lack of opportunity, since dozens of gun cases on every regulation imaginable have been filed with the Court since Heller.
Even some of the justices have expressed their frustration at the Court’s lack of appetite for expanding the case law: “This Court would almost certainly review the constitutionality of a law requiring citizens to establish a justifiable need before exercising their free speech rights,” Justices Thomas and Kavanaugh wrote in 2020 after the Court declined to consider the case of Rogers v. Grewal. “And it seems highly unlikely that the Court would allow a State to enforce a law requiring a woman to provide a justifiable need before seeking an abortion. But today, faced with a petition challenging just such a restriction on citizens’ Second Amendment rights, the Court simply looks the other way.”
The pair said they were aware that lower courts needed a clearer approach to gun cases and argued unsuccessfully that the Court should use the case to give them one.
“This case gives us an opportunity to provide lower courts with much-needed guidance, ensure adherence to our precedents, and resolve a Circuit split. Each of these reasons is independently sufficient to grant certiorari. In combination, they unequivocally demonstrate that this case warrants our review,” they wrote. “Rather than prolonging our decade-long failure to protect the Second Amendment, I would grant this petition.”
The makeup of the Court has changed significantly since it rejected Rogers, and the Court is now considering its second gun case in two years. Perhaps there will be more of an appetite to examine the Second Amendment moving forward.
The Court has a long way to go if it wants to see more consistency across the federal judiciary, though. Even if it kept taking gun cases every year, the Court would end up with only a handful of meaningful rulings to add to Second Amendment case law by the end of the decade. Compare that to the 870 rulings the Court is estimated to have issued in First Amendment cases, and you’ll see how stark the contrast really is.