Earlier this month, a divided panel of the D.C. Circuit upheld the District of Columbia’s ban on semi-automatic rifles and large-capacity magazines and the District’s gun registration requirement as applied to handguns.
The panel divided on the result and–more fundamentally–on the framework courts should use to evaluate the constitutionality of gun control measures following the Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008), which held that the Second Amendment protects an individual right to possess handguns for the purpose of self-defense. Judge Douglas Ginsburg, in his final opinion as an active judge, held that intermediate scrutiny is the appropriate standard for review of gun control laws that impinge upon the right to bear arms but do not invade the core right protected by the Second Amendment–the possession of handguns for self-defense. The Court remanded plaintiffs’ challenge to the registration requirement for rifles and other non-longstanding requirements because the District failed to supply evidence of a substantial relationship between these measures and an important government interest.
Judge Brett Kavanaugh would have struck down the ban on semi-automatic rifles and the registration requirement. He read the Supreme Court’s Heller decision to have adopted a categorical approach to the Second Amendment that eschews balancing tests of any kind, including strict and intermediate scrutiny. Although noting the weight of post-Heller circuit authority applying intermediate scrutiny to laws that incidentally affect the the right to bear arms, Judge Kavanaugh claimed that in subjecting the semi-automatic rifle ban to intermediate scrutiny, “[t]he majority opinion . . . is in uncharted territory.” According to Kavanaugh, “[n]o court of appeals decision since Heller has applied intermediate scrutiny to a class of arms [like semi-automatic rifles] that have not traditionally been banned and are in common use.” Dissent at 30.
The majority and dissent agreed–without much discussion–on the premise that, as Judge Ginsburg put it, all “‘longstanding’ regulations are ‘presumptively lawful.'” Slip op. at 14. Although the Supreme Court’s list of “presumptively lawful regulatory measures” appears in a discussion of restrictions permitted “from Blackstone through the 19th-century cases,” Judge Ginsburg pointed out that at least one item on the list–“prohibitions on the possession of firearms by felons”–first appeared in the 20th century, slip op. at 15. Thus, even gun control regulations that came into common use long after the passage of the Bill of Rights are presumptively constitutional. Although this conclusion is in tension with the Supreme Court’s quest for “the original understanding of the Second Amendment” (and its concern with “how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century”–not the 20th), the responsibility for that tension seems to lie with the Supreme Court itself.
The decision is a major victory for gun control advocates, but it may offer gun rights advocates reason to hope that the brand of intermediate scrutiny adopted by the D.C. Circuit is not without some bite. The Court adopted a sliding scale model of intermediate scrutiny such that “a regulation that imposes a substantial burden upon the core right of self-defense protected by the Second Amendment must have a strong justification, whereas a regulation that imposes a less substantial burden should be proportionately easier to justify.” Slip. op. at 22. In another place, the majority suggests that some even more heightened form of scrutiny might apply when the self-defense right is directly implicated: “[W]e apply intermediate scrutiny precisely because the District’s laws do not affect the core right protected by the Second Amendment.” Slip. op. at 39. And rather than take the District at its word, the Court remanded for factfinding about the closeness of the fit between the District’s novel registration requirements and its asserted interest. This is significant because the Court could have treated the plaintiffs as having waived these challenges by failing to adequately brief them. See slip op. at 27.
The structure of the majority opinion is unusual in that it responds to the dissent’s argument against intermediate scrutiny and other balancing tests in a separate appendix to its opinion–much like a reply brief. The result is a streamlined, 36-page opinion that sets up its argument cleanly and without the distraction followed by a rebuttal aimed directly at the dissent.
From the Majority Opinion:
True, the Supreme Court often applies strict scrutiny to legislation that impinges upon a fundamental right. The Court has not said, however, and it does not logically follow, that strict scrutiny is called for whenever a fundamental right is at stake.
As with the First Amendment, the level of scrutiny applicable under the Second Amendment surely depends on the nature of the conduct being regulated and the degree to which the challenged law burdens the right.
For all the legislative record and the record in this case reveal, the provisions of the FRA that deal specifically with registration of long guns might have been written in invisible ink.
[T]he idea that Heller precludes heightened scrutiny has eluded every circuit to have addressed that question since Heller was issued.
Heller explicitly leaves many questions unresolved and says nothing to cast doubt upon the propriety of the lower courts applying some level of heightened scrutiny in a Second Amendment challenge to a law significantly less restrictive than the outright ban on all handguns invalidated in that case.
It is not our place . . . to determine in the first instance whether banning semi-automatic rifles in particular would promote important law-enforcement objectives. Our role is narrower, viz., to determine whether the District has presented evidence sufficient to “establish the reasonable fit we require” between the law at issue and an important or substantial governmental interest
From the Dissent:
Registration of all lawfully possessed guns–as distinct from licensing of gun owners or mandatory record-keeping by gun sellers–has not traditionally been required in the United States and even today remains highly unusual.
In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.
Even if it were appropriate to apply one of the levels of scrutiny after Heller, surely it would be strict scrutiny rather than the intermediate scrutiny test adopted by the majority opinion here.
Semi-automatic rifles have not traditionally been banned and are in common use today, and are thus protected under Heller.
[I]n its 1994 decision in Staples [v. United States, 511 U.S. 600, 612 (1994)], the Supreme Court already stated that semi-automatic weapons “traditionally have been widely accepted as lawful possessions.”
The fundamental flaw in the majority opinion is that it cannot persuasively explain why semi-automatic handguns are constitutionally protected (as Heller held) but semi-automatic rifles are not.
The majority opinion next contends that semi-automatic handguns are good enough to meet people’s needs for self-defense and that they shouldn’t need semi-automatic rifles. But that’s a bit like saying books can be banned because people can always read newspapers.
This is a case where emotions run high on both sides of the policy issue because of the vital public safety interests at stake. As one who was born here, grew up in this community in the late 1960s, 1970s, and 1980s, and has lived and worked in this area almost all of his life, I am acutely aware of the gun, drug, and gang violence that has plagued all of us. . . . If our job were to decree what we think is the best policy, I would carefully consider the issues through that different lens and might well look favorably upon certain regulations of this kind. But our task is to apply the Constitution and the precedents of the Supreme Court, regardless of whether the result is one we agree with as a matter of first principles or policy.
- Paul Duggan, Federal Appeals Court Panel Rules in Favor of D.C. Gun Law, Wash. Post, Oct. 4, 2011.