Lund on the Post-Heller Shootout Over Standards of Review

Nelson Lund (George Mason University School of Law) has published No Conservative Consensus Yet: Douglas Ginsburg, Brett Kavanaugh, and Diane Sykes on the Second Amendment, in the Federalist Society’s Engage [pdf].  The paper is an abbreviated version of Second Amendment Standards of Review in a Heller World, Lund’s forthcoming article in the Fordham Law Review.

From the Paper:

After McDonald v. City of Chicago held that the Fourteenth Amendment made the Second Amendment applicable to the states, the need for a workable framework of analysis became more acute. The lower courts . . . have understandably adapted the “tiers of scrutiny” framework widely used in other areas of constitutional law. They have quickly and fairly uniformly coalesced around an interpretation of Heller that provides an intelligible framework. The emerging consensus can be roughly summarized as follows:

  • Some regulations, primarily those that are “longstanding,” are presumed not to infringe the right protected by the Second Amendment.
  • Regulations that severely restrict the core right of self-defense are subject to strict scrutiny.
  • Regulations that do not severely restrict the core right are subject to intermediate scrutiny.

The Heller Court seems to have self-consciously refrained from adopting such a framework, but neither did it specify any alternative. We might therefore expect Second Amendment jurisprudence to continue developing through the application of this model.

Maybe it will. But a vigorous challenge was recently advanced in a dissenting opinion by Judge Brett Kavanaugh of the D.C. Circuit. He rejected the consensus approach adopted by his court, arguing that a very different framework is dictated by Justice Scalia’s opinion in Heller. It is therefore worth considering the differences between Judge Kavanaugh’s approach and the one adopted by his colleagues and by other courts of appeals.

I conclude that the analytical framework in Judge Douglas Ginsburg’s majority opinion is superior to Judge Kavanaugh’s. The majority, however, misapplied that framework. A variation developed and applied by Judge Diane Sykes of the Seventh Circuit illustrates how the inferior federal courts can best approach novel Second Amendment issues. . . .

Judges Ginsburg and Kavanaugh engaged in a detailed debate about the appropriate framework for analysis. Neither judge made a plausible case that his preferred framework can be derived from the Heller opinion. The real problem is that Heller is so Delphic, or muddled, that the kind of methodological debate found in Heller II is unresolvable. That said, Judge Ginsburg’s approach seems to me to be clearly preferable. . . .

This is not to say that Heller II was correctly decided. Judge Kavanaugh’s most powerful arguments are directed against the majority’s application of its framework to the challenged regulations. Those regulations were manifestly meant to suppress the legitimate exercise of constitutional rights, and the majority was far too deferential to the government in reviewing them.

See also:

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