Volokh Blog Post on McDonald and Incorporation of the Second Amendment

McDonald v. City of Chicago and the Standard of Review for Gun Control Laws

Eugene Volokh • June 28, 2010 5:40 pm

I don’t have much that’s original or interesting to say about the historical and jurisprudential arguments made by the majority and the dissent in McDonald v. City of CHicago. But I did want to say a few words about the possible implications of McDonald. Let me begin with the question: How could McDonald affect the way that courts evaluate the constitutionality of gun controls, whether federal, state, or local (beyond the obvious point that there are now federal constitutional constraints and state and local gun laws)?
To begin with, let me repeat what I wrote about before, in my Implementing the Right to Keep and Bear Arms for Self-Defense article: Courts shouldn’t simply ask whether right-to-bear-arms claims should be subject to “strict scrutiny,” “intermediate scrutiny,” an “undue burden” test, or any other unitary test. Rather, as with other constitutional rights, courts should recognize that there are four different categories of justifications for a restriction on the right to bear arms:

1. Limited Scope: A restriction might not be covered by the constitutional text, the original meaning of the text, the traditional understanding of the text’s scope, the background legal principles establishing who is entitled to various rights, or the categorical exceptions set forth by binding precedent (such as Heller’s statement that bans on gun possession by felons, bans on concealed carry, and several other kinds of gun controls are constitutional).
2. Slight Burden: A restriction might only slightly interfere with rightholders’ ability to get the benefits that the right secures, and thus might be a burden that doesn’t rise to the level of unconstitutionally “infring[ing]” the right.
3. Reducing Danger: A restriction might reduce various dangers (in the case of arms possession, chiefly the dangers of crime and injury) so much that the court concludes that even a substantial burden is justified.
4. Government as Proprietor: The government might have special power stemming from its authority as proprietor, employer, or subsidizer to control behavior on its property or behavior by recipients of its property.

But this having been said, the “reducing danger” justifications are indeed often evaluated under intermediate or strict scrutiny, and some lower federal courts dealing with Second Amendment challenges after Heller have indeed applied these standards of review. And while McDonald doesn’t purport to discuss what standard of review courts should apply, it might still affect the matter.

A. The incorporation precedents under the Due Process Clause generally hold that the Fourteenth Amendment applies against the states those rights that are “fundamental to our scheme of ordered liberty and system of justice.” The plurality held that the Second Amendment is incorporated by concluding that the right is indeed fundamental; and Justice Thomas’s concurrence also referred to the right as fundamental.
Now as it happens there is also talk in the Court’s precedents that restrictions on rights should be evaluated under strict scrutiny if those rights are fundamental. I don’t think that’s quite right (partly for reasons I explain in my article). But the Court has said this, and as a result some lower courts have concluded that restrictions on the right to bear arms should be evaluated only under intermediate scrutiny, because the right isn’t really fundamental. Here, for instance, is a passage on the subject from Heller v. D.C. (II), 2010 WL 1140875 (D.D.C. Mar. 26), which dealt with D.C.‘s new gun control law:

[T]he Heller [(I)] majority suggested that one of the two “traditionally expressed levels” of heightened scrutiny — intermediate scrutiny and strict scrutiny — should be applied to laws implicating the Second Amendment right. Thus, the court turns to an analysis of whether intermediate scrutiny or strict scrutiny is the most appropriate standard to be used to evaluate restrictions on the exercise of the Second Amendment right. As many courts have recognized, the Supreme Court did not explicitly hold that the Second Amendment right is a fundamental right, despite the fact that it stated that “[b]y the time of the founding, the right to have arms had become fundamental for English subjects” and noted that Blackstone “cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen.” If the Supreme Court had wanted to declare the Second Amendment right a fundamental right, it would have done so explicitly. The court will not infer such a significant holding based only on the Heller majority’s oblique references to the gun ownership rights of eighteenth-century English subjects.

Partly because of this (though also based on other arguments), the court concluded that “intermediate scrutiny is the most appropriate standard of review to apply to the challenged laws.” See also United States v. Yanez-Vasquez, 2010 WL 411112 (D. Kan. Jan. 28) (“The court declines to apply strict scrutiny, since ... Heller did not expressly find firearm possession to be a fundamental right.”); United States v. Jones, 673 F. Supp. 2d 1347 (N.D. Ga. 2009) (though this involved gun possession by a felon, which, according to Heller, is outside the Second Amendment’s scope); United States v. Miller, 604 F. Supp. 2d 1162 (W.D. Tenn. 2009) (same). McDonald’s conclusion that the right is fundamental might change this, and might lead courts to apply strict scrutiny rather than intermediate scrutiny. I’ve argued in my article that the intermediate/strict scrutiny distinction might be less helpful than might appear (and I’ve more broadly argue that intermediate scrutiny and strict scrutiny themselves don’t provide a terribly helpful way of framing the discussion). But my sense is that judges do care about the distinction; if this is so, then McDonald’s conclusion that the right as fundamental could prove important.
B. The Court also writes, responding to Justice Breyer’s dissent,

Justice Breyer is incorrect that incorporation will require judges to assess the costs and benefits of firearms restrictions and thus to make difficult empirical judgments in an area in which they lack expertise. As we have noted, while his opinion in Heller recommended an interest-balancing test, the Court specifically rejected that suggestion. “The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon.”

If one takes this seriously, then this suggests that the government might not be able to prevail with “reducing danger” arguments at all. Say, for instance, that the government argues that restrictions on handgun possesion by 18-to-20-year-olds are constitutional, based on data about gun crime by people in that age group (an argument that the district court seemed to accept, though in a somewhat procedurally complicated context, in United States v. Bledsoe, 2008 WL 3538717, *4 (W.D. Tex. Aug. 8), citing and reaffirming post–Heller the court’s earlier decision at 2008 WL 3538717, *4 (W.D. Tex. Mar. 20)). Under a standard intermediate or even strict scrutiny framework, this sort of argument might well work, on the theory that the government has shown that the law is substantially related to an important government interest in protecting life and preventing crime, or even that the law is narrowly tailored to a compelling government interest. But if indeed courts have no need “to make difficult empirical judgments” about the “costs and benefits of firearms restrictions,” because the “enumeration of the right takes out of the hands of government ... the power to decide on a case-by-case basis whether the right is really worth insisting upon.” (Compare Craig v. Boren, 424 U.S. 190, 203–04 & 208 n.22 (1976), which seems to largely but not entirely close the door to arguments that sex or race classifications would be constitutional when sex or race is a statistically sound proxy for some bad behavior.)
The same might be true with regard to arguments that bans on gun possession by people who are under domestic restraining orders pass intermediate or strict scrutiny, and so on. Perhaps such bans might still be upheld on the grounds that the historically approved scope of the right is limited to “peaceable citizens,” and excludes not just convicted felons but also people for whom there was a showing, by a preponderance of the evidence, that they had committed a violent misdemeanor (or something like that) and are likely to pose a continuing dangers. Or perhaps there are other reducing-danger arguments that could be approved under intermediate or strict scrutiny but without the use of statistical evidence. But if we take seriously the Court’s assertion that the Second Amendment bars courts from engaging in empirical decisionmaking about the supposed efficacy of gun controls, then it sounds like “reducing danger” arguments for gun controls become much harder to make.
These are just tentative predictions; I may well change my mind after thinking more about the decision, and in any event courts might well not put quite this much stock in the particular McDonald passages that I refer to. Still, I thought I’d flag them in case they’re helpful, interesting, or both.