Judicial Scrutiny of Challenged Gun Control Regulations: The Implications of an Individual Right Interpretation of the Second Amendment
As part of adivorce proceeding, Timothy Joe Emerson was enjoined by a court from taking any action to threaten or injure his wife. Several months after the imposition of this injunction, Emerson was indicted under a federal law prohibiting any person subject to such a court order from possessing a firearm.1 Emerson challenged his indictment in part on the ground that this federal law violated his Second Amendment right to keep and bear arms.2 To the surprise of many in the legal community, the United States Court of Appeals for the Fifth Circuit was sympathetic to his claim, holding that the Second Amendment does, in fact, protect an individual’s right to keep and bear arms.3
Emerson’s victory, however, was not unqualified. While the Fifth Circuit held that the Second Amendment protects an individual right, it explained that the right is not absolute:
Although, as we have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to keep and bear their private arms as historically understood in this country.4
The court went on to hold that the deprivation of Emerson’s right in this case was reasonable, finding “the nexus between firearm possession by the party so enjoined and the threat of violence, is sufficient, though likely barely so, to support the deprivation.”5
The Fifth Circuit’s decision in Emerson was significant as the first time a federal appellate court had recognized an individual right interpretation of the Second Amendment.6 Shortly thereafter, in early 2003, several judges of the Ninth Circuit Court of Appeals, while ultimately adhering to that court’s standing interpretation of the Second Amendment as guaranteeing a collective right, indicated their own affinity for the reasoning in Emerson.7
In Nordyke v. King (2003), a panel of three circuit judges wrote that, “if we were writing on a blank slate, we may be inclined to follow the approach of the Fifth Circuit in Emerson.”8 One judge went even further, writing a special concurrence to emphasize his view that the Ninth Circuit had gotten its interpretation of the Second Amendment wrong, and that the court should now embrace an individual right view of the Amendment.9 Despite their disagreement with the earlier court decision, the judges acknowledged that they were bound by the precedent set in Hickman v. Block (1996)10 to hold that the Second Amendment protects a collective right of the people of the state. Other judges on the Ninth Circuit were not as sympathetic to Emerson; on May 6, 2003, the full Ninth Circuit declined the opportunity to reconsider Hickman by rehearing en banc arguments in Silveira v. Lockyer (2003) another Second Amendment case11 (the vote on rehearing came after the panel decision in Nordyke, which criticized Silveira, had been issued), but not without public dissent from several judges on the Second Amendment issue.12 The Ninth Circuit’s action leaves the Fifth Circuit alone—at least for the moment—among the federal appellate courts in maintaining an individual right view of the Second Amendment.
Growing support for an individual right interpretation of the Second Amendment has not been limited to the judicial branch of government. On May 17, 2001, United States Attorney General John Ashcroft wrote the executive director of the National Rifle Association’s (NRA) Institute for Legislative Action to express his view that “the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms.”13 The Department of Justice put the Attorney General’s words into action when it filed a brief in opposition to a grant of certiorari in Haney v. United States (2001).14 In that case, the Tenth Circuit had held that 18 U.S.C. § 922(o), which prohibits the possession of machine guns, did not violate the Second Amendment, as that constitutional provision was intended only to preserve the effectiveness of state militias.15 In its brief opposing Supreme Court review of the Tenth Circuit’s decision, the Justice
Department acknowledged that “[t]he government agrees with petitioner that the Fifth Circuit’s decision in Emerson reflects a sounder understanding of the scope of purpose of the Second Amendment than does the court of appeals’ decision in the instant case.”16 Nevertheless, the government supported the decision of the appellate court that the federal law was a valid restriction on this individual right.17
The individual right interpretation has also received recent support in Congress. On July 15, 2003, United States Senator Orrin Hatch of Utah introduced the District of Columbia Personal Protection Act, which would repeal the District of Columbia’s ban on firearm ownership and restrict the authority of the District’s council to prohibit such ownership in the future. In introducing the measure, Senator Hatch noted that “this bill goes a long way toward restoring the constitutionally guaranteed right of Americans who reside in the District of Columbia to possess firearms.”18 His bill was introduced with 21 cosponsors.19 In a similar vein, two public policy organizations filed separate lawsuits challenging the District of Columbia’s handgun ban, arguing that it violates the Second Amendment.20
These developments are remarkable in that they signal an apparent momentum toward the widespread acceptance of an interpretation of the Second Amendment that protects an individual right to possess a firearm. If these developments continue and an individual right interpretation becomes accepted by the courts, another important question closely follows: assuming that individuals do have the constitutionally guaranteed right to keep
and bear arms, how are courts to determine what restrictions on that right are permissible? Many gun control measures currently on the federal, state, and local books can be characterized as infringements on the right to keep and bear arms. If a gun control measure is challenged as violating an individual Second Amendment right, courts will be required to determine whether the regulation is consistent with that constitutional guarantee. An individual right interpretation of the Second Amendment thus raises a host of issues, including what the scope of the constitutionally protected activity is, whether a particular restriction on that activity is so substantial as to amount to an “infringement,” and whether a given infringement is nonetheless “reasonable,” given the government’s justification.
This appendix attempts to identify and explore the issues that arise under an individual right interpretation of the Second Amendment, as well as to demonstrate the need for detailed empirical research on the efficacy of various gun control measures in advancing purported state interests in reducing gun-related crime and violence. Part I continues to trace the fairly recent rise of the individual right interpretation, demonstrating why such an interpretation is a distinct possibility in the future. Part II addresses some of the legal issues that arise under such an interpretation. First, this section explores efforts to define the precise scope of an individual Second Amendment right. Second, this section considers what it means to constitute an “infringement” of the right. Finally, Part II looks at the balancing involved in determining when infringements will be tolerated because they serve other important state interests. Part III briefly explains the contribution empirical research can make in the context of this balancing approach.
I. THE RISE OF AN INDIVIDUAL RIGHT INTERPRETATION OF THE SECOND AMENDMENT
The meaning of the Second Amendment’s “right to keep and bear arms” has been the subject of intense scholarly debate in recent decades. The peculiar wording of the Second Amendment21 and different readings of the history behind that amendment have offered room for differing points of view over the character of the right protected. From this debate, two general views of the extent of the Second Amendment right have emerged.
First, the “states’ rights” or “collective rights” view of the Second Amendment argues that the amendment guarantees only the right of the states to create and maintain armed militias.22 Under this interpretation, there is no individual right of private firearm ownership, but rather a collective right of the people or the states to an armed militia. Advocates of this model focus on the amendment’s prefatory clause—“A well regulated Militia, being necessary to the security of a free State”—as limiting the right granted in the operative clause—“the right of the people to keep and bear Arms, shall not be infringed.” The framers intended, according to this theory, that states be free to maintain and arm the type of militias referenced in the fifteenth and sixteenth clauses of Article I, Section 8 of the Constitution,23 which give Congress the power to organize, arm, discipline, and call forth state militias. Outside this limited context, the amendment provides no protection.
A related (yet distinct) interpretation of the Second Amendment has been called the “sophisticated collective rights” model.24 Under this view, the right protected is an individual one, but only to the extent that the individual protected is a member of a state militia. That is, an individual has the right to keep and bear arms when the state does not itself provide the arms for its militia. Proponents of this model read the prefatory clause as qualifying the right granted by the operative clause. For many supporters of the states’ rights or the sophisticated states’ rights theories, the demise of the importance of and need for state militias in modern society has stripped the Second Amendment of any modern day relevance.25
The second general view of the Second Amendment provides that the right guaranteed by that provision is the right of an individual to keep and
bear arms.26 Proponents of this model rely on several arguments in support of an individual right interpretation, including the history27 and the text of the amendment (the operative clause grants the right, while the prefatory clause is simply “an observation, or perhaps a cautionary note”28). In addition, individual right supporters note that the amendment’s text guarantees the right to “the people,” not to the states.29 This phrase, it is argued, has a unique meaning in the Constitution, as discussed in a recent opinion by the Supreme Court:
“The people” seems to have been a term of art employed in select parts of the Constitution…. The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” … While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community.30
Giving “the people” different meanings in different contexts within the Constitution, proponents argue, would be inconsistent. These arguments lead many commentators to conclude that the Second Amendment guarantees an individual right to private ownership of firearms.
Academic Support of the Individual Right Interpretation
Support for the individual right view of the Second Amendment is relatively new to academic literature, but in recent decades this interpretation has become widely embraced in the scholarship. One commentator has suggested that the collective rights model was the uncontroversial interpretation of the Second Amendment for well over a century; then, between 1970 and 1989, the balance began to tip: 25 law review articles supporting the collective rights model were published, while 27 articles supporting the individual
rights interpretation appeared in the legal journals.31 During the 1990s, 58 law review articles were published supporting the individual rights model; only 29 favored the collective rights model.32 In fact, some went so far as to suggest that “so great is the new ‘consensus’ about the Second Amendment that ‘much as physicists and cosmologists speak of the Standard Model in terms of the creation and evolution of the Universe’ the individual right model could now be renamed the standard model.”33 One commentator suggests that these three elements motivated the rise of the individual right interpretation: “the mass of individual right literature, the endorsement of five prominent scholars, and the use of the term standard model.”34
Another commentator has summarized recent academic writing on the Second Amendment by noting that of the 34 law review articles substantially discussing the amendment published between 1980 and 1996, only 3 endorsed the states’ rights theory.35 He further noted that the three states’ rights articles were prepared for symposia in which antigun groups were asked to provide their positions; two of these were written by “lobbyists for anti-gun groups” and one by a politician.36 In contrast, that author observed that the individual right interpretation had attracted the support of the majority of academics, including some of the “major figures in constitutional law.”37 Another commentator pointed out, however, that a significant number of the articles supporting the individual right model published between 1970 and 1989 were written by lawyers who had either been employed by or who represented gun rights organizations, including the NRA.38
Of course, the dearth of collective rights scholarship may have been the result of the perceived lack of any need for a defense of this interpretation. According to one commentator, “Until recently, there was little reason for
scholars agreeing with the collective right model to address the topic.”39 This observation came in an introduction to a Symposium on the Second Amendment sponsored by the Chicago-Kent Law Review in 2000, which was designed to “take a fresh look at the Second Amendment and, particularly, the collective right theory. This is not, therefore, a balanced symposium.”40 The perceived need for such a “fresh look” suggests that the supporters of the collective rights interpretation are prepared to step up their involvement in the debate over the interpretation of this constitutional provision.
The Federal Courts of Appeals and the Second Amendment
Those federal courts of appeals that have addressed the proper interpretation of the Second Amendment have generally taken the collective or states’ rights view.41 Illustrative of this approach is the Seventh Circuit’s opinion in Gillespie v. City of Indianapolis (1999), a case in which a former police officer challenged a federal law prohibiting persons convicted of domestic violence from possessing a firearm as violating his Second Amendment right.42 The court of appeals upheld the law, noting: “The link that the amendment draws between the ability ‘to keep and bear Arms’ and ‘[a] well regulated Militia’ suggests that the right protected is limited, one that inures not to the individual but to the people collectively, its reach extending so far as is necessary to protect their common interest in protection by a militia.”43
The Fifth Circuit’s decision in Emerson is a clear break with this trend (and the Ninth Circuit’s opinion in Nordyke suggests further dissatisfaction within the federal courts with the perpetuation of a collective rights interpretation). The Emerson decision creates an obvious split among the circuits on an important constitutional question, suggesting that the U.S. Supreme Court may wish to grant certiorari in a Second Amendment case at some point to provide a definitive answer to this question that divides the federal circuits. The Supreme Court’s previous Second Amendment jurisprudence provides little guidance as to how the Court will rule if and when it undertakes to answer this question.
The Supreme Court and the Second Amendment
As noted at the outset of this paper, the U.S. Supreme Court has recently declined to hear argument in two cases that squarely presented the
question of the proper interpretation of the Second Amendment.44 Many scholars find this unfortunate, as the Court has addressed the proper interpretation of the Second Amendment on only a few previous occasions—and commentators sharply disagree as to what the Court actually said in those instances.
In United States v. Miller (1939), the Court’s most recent and most extensive discussion of the amendment, the Court upheld the National Firearms Act against a challenge that it unconstitutionally infringed upon the Second Amendment right to bear arms. 45 Noting that the Constitution granted Congress the power to regulate and call forth state militias, the Court stated that “With obvious purpose to assure the continuation and render possible the effectiveness of such [Militia] forces the declaration and guarantee of the Second Amendment was made. It must be interpreted and applied with that end in view.”46 In that light, the Court found that:
In the absence of any evidence tending to show that possession or use of “a shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.47
The Court thus seemed to read the Second Amendment as inextricably intertwined with the maintenance of state militias.
Many academic commentators share the view that Miller supports a collective right interpretation of the Second Amendment. As one article stated, “The Miller Court thus clarified three things regarding the protection afforded by the Second Amendment: [including,] the right to keep and bear arms is a collective right for the benefit of the people—it is not an individual right … [thus] only a federal attempt to disarm organized state militias could possibly constitute a violation of the Second Amendment.”48 Another scholar has examined Miller in light of the Supreme Court’s subsequent jurisprudence, concluding that, “These decisions suggest that, without directly facing the question, the Supreme Court has come to understand Miller as standing roughly for the collective right view of the Second Amendment.”49
Other commentators have argued that the Court’s opinion in Miller does not preclude an individual right interpretation of the Second Amend-
ment. Professor Nelson Lund has advanced three reasons for a narrow reading of Miller: “First, the Court’s statement of its holding invites a narrow construction. Second, the logic that appears to underlie some of the Court’s reasoning would lead to manifest absurdities. Third, the Court heard arguments on only one side of the case.”50 Thus, “Miller should be read to approve restrictions only on weapons that have the special characteristics shared by those identified in the National Firearms Act of 1934—i.e., slight value to law abiding citizens and high value to criminals.”51
Brannon P. Denning and Glenn H. Reynolds have argued that, at the least, Miller does not deny that the Second Amendment protects an individual right to firearm ownership—as many federal courts have read that decision.52 Their article first notes that the Supreme Court did not deny that the defendants in Miller had standing to raise the Second Amendment’s guarantee as a defense to the charges against them—thus casting doubt on the argument that the Supreme Court had adopted a collective rights interpretation of the amendment (a defense that could be raised only by members of a militia).53 The authors further argue that the Court’s decision to reject the government’s primary argument, an iteration of the collective rights model, undermines any conclusion that Miller adopted a collective rights interpretation. Rather, the Court reasoned that, assuming the Second Amendment protects an individual’s right to bear arms, that right only extended to weapons suitable for use in a militia.54 They emphasize that the government’s argument was the only one before the Court; the defendants neither filed briefs nor appeared at oral argument.55
Recent Supreme Court opinions and other writings by the justices may provide some indication as to where certain justices stand on the question of the Second Amendment. On one hand, one commentator has noted that two current justices have suggested that the Court should reconsider the Second Amendment.56 Justice Clarence Thomas has written that “a growing body of scholarly commentary indicates that the ‘right to keep and bear arms’ is, as the Amendment’s text suggests, a personal right.”57 Justice Antonin Scalia has written that it would be “strange” if the Second Amend-
ment were found not to grant an individual right.58 On the other hand, Justice David Souter, joined in a dissenting opinion by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer, “hinted” that the amendment might protect a collective right.59
At the very least, the degree of debate over the proper reading of the Supreme Court’s decision in Miller suggests that the issue remains unsettled. Thus, it does not appear that the Supreme Court will feel bound by stare decisis to support a collective rights interpretation of the Second Amendment, if and when that issue comes before the Court again.
The Incorporation Question
A separate but important question in the interpretation of the Second Amendment is its reach. The provisions of the Bill of Rights were originally intended to limit the powers of the federal government. Beginning in the early 20th century, however, the Supreme Court began to apply some, but not all, of the Bill of Rights limitations to the states, in a process known as incorporation.60 If the Second Amendment is found to protect an individual right to keep and bear arms, the question arises as to whether that protection extends only to federal restrictions on the right or whether it will reach state law restrictions as well.
Opponents of incorporation point to the Supreme Court’s decisions in United States v. Cruikshank61 (1875) and Presser v. Illinois62 (1886) for the proposition that the Second Amendment has not been incorporated to apply to the states. Concededly, the Presser Court did say that the Second Amendment “is a limitation only upon the power of Congress and the National government, and not upon that of the States.”63 Yet it would be unfair to consider these decisions relevant today, as the doctrine of incorporation has been completely transformed since those decisions were rendered.64 Until 1897, the Supreme Court had consistently refused to apply
the Bill of Rights provisions to the states.65 It was not until Chicago, Burlington & Quincy Railroad v. Chicago66 (1897) that the Court first suggested that the Due Process Clause of the Fourteenth Amendment could be a vehicle for incorporation.
Since the early incorporation cases, the Supreme Court has followed a process of “selective incorporation”—not all provisions of the Bill of Rights are automatically made applicable to the states. Rather, individual provisions must pass the test for incorporation outlined in Palko v. Connecticut (1937): to qualify for incorporation, a right must be “implicit in the concept of ordered liberty.”67 In Duncan v. Louisiana (1968), the Court elaborated on this test: the question is “whether a right is among those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,’ whether it is ‘basic in our system of jurisprudence,’ and whether it is a ‘fundamental right, essential of a fair trial.’”68
Since outlining the modern incorporation test, the Supreme Court has not reexamined the issue of incorporating the Second Amendment’s guarantee into the concept of due process.69 Commentators have argued that a faithful application of the modern test, however, would require incorporation of the amendment.70 These commentators suggest that the text of the Second Amendment’s prefatory clause, remarking on the right being “necessary for the security of a free State,” is strikingly similar to the current incorporation test: “implicit in the concept of ordered liberty.”71 If the Second Amendment is deemed to protect an individual right, resolution of the incorporation question will determine how far the guarantee reaches: which restrictions—federal only or state as well—will be affected.
II. REVIEWING RESTRICTIONS ON AN INDIVIDUAL SECOND AMENDMENT RIGHT
As previously noted, an individual right interpretation of the Second Amendment raises a number of issues: how to delineate the scope of the individual right, identify infringements of that right, and determine which
infringements are reasonable. Resolution of each of these issues will impact the ultimate determination of what gun control regulations will be permissible under the Second Amendment. For example, the scope of the individual right could be defined to exclude certain weapons from protection; thus, regulations touching on those weapons would not impact the constitutional guarantee at all. In addition, the definition of an infringement will determine whether a challenged regulation triggers judicial scrutiny or not, and at what level. Finally, court balancing of the extent of an infringement against the state interests offered as a justification for the infringement will be critical in determining what regulations are reasonable.
The Scope of the Second Amendment Right
Determining the scope of activity that comes within the protection of the Second Amendment is itself an undertaking that raises a number of questions. For example, what “arms” are protected? What does it mean to “keep” or “bear” a protected arm? By its very terms, the Second Amendment appears to protect the right to keep and bear arms from any restriction whatsoever: “the right of the people to keep and bear Arms, shall not be infringed.”72 Yet no one seriously argues that private citizens should be allowed to possess nuclear weapons or shoulder-fired antiaircraft rockets.73 Determining what is protected and what is not, especially given the technological and societal changes since the amendment was adopted, presents a difficult task; some have lamented that the process of outlining the scope of the Second Amendment’s protections with any precision may be impossible.74 One commentator has argued that the failure to coherently outline the scope of the right has led to an “erratic and ill-defined pattern of adjudication” that can be solved only “by developing a final and conclusive interpretation” of the amendment.75 Determining the scope of protection is important in answering the threshold question of when the right is infringed. A narrow interpretation provides more room for the operation of gun control measures that limit an individual’s ability to own a firearm
without raising the difficult balancing issues discussed below. Conversely, a broad conception of the “right” will implicate a greater number of gun control regulations as potentially impinging on the right.
Commentators have proposed several means of demarcating the scope of the Second Amendment’s protections. One of the most commonly advanced methods is based on looking to the history and antecedents of the amendment in an effort to construct an idea of what the Constitution’s drafters had in mind when they ratified it.76 Under this approach, individual restrictions on private firearms ownership are measured against a conception of what the framers thought the Second Amendment should protect.
For example, commentator Don Kates has suggested a tripartite test for determining what “arms” are protected, developed from his reading of the history and antecedents of the Second Amendment, as well as the limited Supreme Court jurisprudence on the subject:
That weapon must provably be (1) “of the kind in common use” among law-abiding people today; (2) useful and appropriate not just for military purposes, but also for law enforcement and individual self-defense, and (3) lineally descended from the kinds of weaponry known to the Founders.77
Kates goes on to identify two further “limiting principles” on the scope of the amendment’s protection.78 First, since the amendment only protects those arms which one can “keep and bear,” “weapons too heavy or bulky for the ordinary person to carry are apparently not contemplated.”79 Second, he argues that the common law right that predated the Second Amendment did not extend to “‘dangerous or unusual weapons’ whose mere possession or exhibition ‘are apt to terrify the people.’”80
Another approach to defining the scope of the Second Amendment is a “functional” approach, which again relies on the history of the amendment
and its historical predecessors.81 One commentator starts with the recognition that “the original understanding of the Second Amendment was based on the belief that arms should perform military, political, civil, and moral functions” and that therefore “we ought to interpret the Amendment in a way that proscribes interference with armed citizens’ capacity to perform those functions. That is, the four functions should serve as benchmarks for measuring the constitutional limits of interference with the right to keep and bear arms.”82
In attempting to draw the line between activity protected by the Second Amendment and activity that is not, a useful analogy can be made to First Amendment free speech jurisprudence.83 That amendment provides in relevant part that “Congress shall make no law … abridging the freedom of speech….”84 Like the Second Amendment, this provision speaks in absolute terms, apparently barring any infringement on the right of free expression. The courts have, however, sought to define the scope of protected expression by identifying those classes of speech that do not merit protection. For example, incitements of illegal activity,85 fighting words,86 and obscenity87 have been held by the Supreme Court to be outside the area of constitutionally protected speech.
In determining what is unprotected expression, the Supreme Court has on occasion looked to the history of the First Amendment.88 But relying on the history of the amendment and the framers’ intentions regarding the freedom of speech is problematic, as there is evidence that the framers did not intend the protection to reach very far; according to one constitutional scholar, “Supreme Court cases dealing with freedom of expression focus less on the framers’ intent than do cases involving many other constitutional provisions. There is relatively little that can be discerned as to the drafters’ views other than their desire to prohibit prior restraints … and their rejection of the crime of seditious libel.”89
More often, the Court has focused on a functional method of determining the scope of the First Amendment’s protections. In Chaplinsky v. New Hampshire (1942), the Court stated that:
[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem…. such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.90
This approach focuses on the purposes behind the amendment—to foster the “exposition of ideas” and the search for “truth”—in an approach similar to the functional approach toward defining the Second Amendment discussed above.
Defining the scope of the Second Amendment’s protection is one way in which the permissibility of challenged gun control measures can be evaluated. For example, if one accepts the Kates test outlined above as an accurate measure of the scope of the right, it is easy to see why handguns are clearly protected, while weapons like Saturday Night Specials or switchblade knives are not.91 It could be argued that the amendment was never intended by the framers to protect ownership of these weapons from government regulation, because these weapons are not necessary for military, law enforcement, or self-defense purposes. Similarly, private ownership of nuclear weapons would not be protected, as such weapons are not lineal descendants of the types of weapons known to the framers. Assault rifles present a more difficult question: if one sees such weapons as direct descendants of the type of weapons used by the framers, as well as useful for modern military or law enforcement purposes, ownership of such rifles may be entitled to some level of protection. In any case, using such a test to determine the scope of protection provided by the amendment, a court could determine whether regulations that ban or otherwise restrict ownership of certain weapons implicate the Second Amendment’s guarantee at all.
“Infringements” on the Second Amendment Right
Once a core of protected activity is identified, the question becomes when a particular gun control regulation impinges on that protected sphere. Answering that question is not as straightforward as it may seem: one
commentator has noted that determining whether an infringement has occurred is closely bound up with the doctrinal considerations involved in defining the scope of a right and whether an infringement is justified. “[C]losely examining the way that courts determine whether a right has been infringed may be very relevant to defining the scope of the right and to evaluating the state’s justification for impairing the right.”92 This commentator goes on to observe that “often the Court does not isolate the issue of infringement, but rather implicitly subsumes it within an analysis that focuses on the scope of the right and the state’s justification for any purported impairment.”93
The Supreme Court has held that not every regulation that impacts a constitutional right rises to the level of an infringement: “As our jurisprudence relating to all liberties save perhaps abortion has recognized, not every law which makes a right more difficult to exercise is, ipso facto, an infringement on that right.”94 To qualify as an “infringement,” a government regulation must place a significant burden on the exercise of the right; indirect or incidental burdens may not be considered to “infringe” on protected activity.95 The Supreme Court has indicated that the key to determining whether a right has been infringed is the “directness and substantiality of the interference.”96
Again, the Supreme Court’s consideration of burdens placed on the exercise of the First Amendment right to free speech is illustrative. The critical factor in identifying whether a regulation constitutes “infringement” on speech—and the level of scrutiny the regulation will then receive—is whether the regulation is considered content-based or content-neutral. “Content-based regulations are presumptively invalid”97 and will be permitted only if they meet the demands of strict scrutiny. Preventing all speech on a particular subject places a heavy burden on the exercise of the right (making it impossible to exercise with regard to that particular subject), clearly rising to the level of an infringement.
“In contrast, regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny.”98 Time, place, or manner
restrictions are familiar examples of permissible regulations on speech. Such regulations apply to all speech regardless of its content; they simply regulate the secondary effects of the exercise of the right. Nonetheless, limiting the time, place, or manner in which one can permissibly express one’s ideas does make the exercise of the right more difficult. The key difference is that the burdens created by these regulations are not so significant as to cross the threshold to become an “infringement.”
Many gun control regulations burden the exercise of an individual right to private firearm ownership in one way or another, but many of these regulations may nevertheless be permissible if the burdens they impose do not rise to significant levels. At one extreme, a federal or state law that bans the possession of any type of firearm by an individual would clearly constitute an infringement of an individual Second Amendment right. Laws that prohibit whole classes of individuals (e.g., felons, minors, the mentally ill) from possessing firearms would similarly seem to constitute an infringement of the right as to those individuals (albeit justifiable ones).99 Laws that prohibit the possession of whole classes of weapons would appear to make the exercise of the right more difficult.100 Other provisions like firearm licensing or registration requirements also arguably place burdens on an individual’s exercise of the right to bear arms.101 Whether such regulations amount to “infringements” will depend on the directness and substantiality of the burden.
As the foregoing discussion illustrates, a permissible gun control regulation could be characterized in a number of ways. The regulation could be permissible because it is considered to impact activity that falls outside the Second Amendment’s sphere of protection. It could be permissible because it places only an incidental or insignificant burden on the exercise of the right, and therefore does not constitute an “infringement.” Finally, as the next section discusses, the regulation could be an “infringement” on protected activity, but nonetheless permissible because the infringement is justified by serving a compelling government interest.
“Reasonable” Infringements on the Second Amendment Right
Even if a regulation is found to rise to the level of an “infringement” of the Second Amendment’s sphere of protected activity, that regulation may still be permissible. The Supreme Court has made clear that constitutional rights are subject to “reasonable” restrictions. The Court has recognized that there may be legitimate and compelling reasons for a regulation that outweigh any minimal harm caused by the constitutional infringement. Determining when such infringements are “reasonable” requires courts to balance the extent of the alleged infringement against the state interest offered as a justification for that infringement.
This heightened judicial scrutiny comes in a several forms. The most demanding level of court examination is strict scrutiny, which is typically reserved for infringements on so-called fundamental rights.102 Under the strict scrutiny regime, an infringement will be upheld only if it is narrowly drawn to serve a compelling state interest. In Moore v. City of East Cleveland (1977), the Supreme Court formulated the strict scrutiny test as follows: “When the government intrudes on a fundamental right, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.”103 In addition, the government action must be narrowly tailored: the governmental interests must not be attainable through any less restrictive means.104
Thus, the first question under strict scrutiny is whether the government can demonstrate a “compelling” interest that is served by the infringement of the right. Protecting the public from gun-related crime or gun-related accidents certainly seems compelling—even pro-individual right commentators have suggested that such state interests amount to “sufficiently wor-
thy government purposes.”105 Once a compelling purpose is identified, a court must then determine whether that interest is furthered by the regulation in a narrowly tailored way. This prong of the test actually encompasses two related questions: first, whether the challenged regulation actually does further the achievement of the government interest, and second, whether the regulation furthers that interest in a manner that causes the least possible amount of infringement.
Lund has suggested that First Amendment principles are here again helpfully translated to the Second Amendment context: “In both cases, the Constitution establishes a rule that protects a human activity that its Framers regarded as a natural right…. both cases, the Constitution reflects a determination that social benefits of giving legal protection to the instruments needed for the pursuit of those goals will outweigh the inconveniences arising from their misuse. In both cases, the erection of this barrier against the state governments will necessarily involve the courts in the business of balancing the public welfare against the interests of those individuals whose liberty the government wants to restrict.”106
In the First Amendment context, different types of speech are subject to different levels of protection, based primarily on an assessment of the value or “hardiness” of the type of speech involved. For example, political speech is generally considered deserving of more protection than commercial speech. This differential treatment is implicit in the balancing process involved in reviewing restrictions on speech: “The categories of unprotected and less protected speech reflect value judgments by the Supreme Court that the justifications for regulating such speech outweigh the value of the expression.”107
Heightened judicial scrutiny may also be applied through an “undue burden” standard. This standard was announced in Planned Parenthood v. Casey (1992), in which the Court held that restrictions on the right to decide whether to terminate a pregnancy were invalid if they placed an “undue burden” on the exercise of that right or, in other words, if a regulation “has the purpose or effect of placing a substantial obstacle in the path of a woman” seeking to exercise this right.108 The “undue burden” standard, however, may be unique to the abortion context, and its applicability to the Second Amendment is unclear.
As noted above, laws that prohibit certain classes of individuals from possessing any firearms constitute an infringement of the individual Second
Amendment right. Nonetheless, courts have upheld such regulations as reasonable: the asserted state interest in protecting the public from individuals who may not have the capacity or judgment to possess and use a firearm properly clearly outweighs the extent of the infringement.
III. THE CONTRIBUTION OF EMPIRICAL RESEARCH TO JUDICIAL SCRUTINY
The balancing common to the various methods of heightened judicial scrutiny discussed above is only enhanced by empirical analysis of how well a challenged regulation actually does or does not achieve its purported state interest. The alternatives to relying on empirical data are either to trust the intuitions of judges or to completely defer to the judgments of the legislatures that enact the gun control measures. Both alternatives are unsatisfactory.
The Supreme Court has noted the importance of empirical data in resolving challenges to First Amendment restrictions. In Nixon v. Shrink Missouri Government PAC (2000), the Court noted that “[t]he quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised…. We have never accepted mere conjecture as adequate to carry a First Amendment burden….”109 In Renton v. Playtime Theatres (1986) another First Amendment case, the Supreme Court noted that, “The First Amendment does not require a city, before enacting … an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies on is reasonably believed to be relevant to the problem that the city addresses.”110
Empirical data are also important in the context of the dormant Commerce Clause balancing test. The Supreme Court has stated that state-imposed burdens on the free flow of interstate commerce cannot be justified by “simply invoking the convenient apologetics of the police power.”111 On another occasion the Court warned that “the incantation of a purpose to promote the public health or safety does not insulate a state law from Commerce Clause attack. Regulations designed for that salutary purpose nevertheless may further the purpose so marginally, and interfere with commerce so substantially, as to be invalid.”112 The Court has often re-
quired states defending challenged regulations to provide extensive empirical and statistical evidence to support their proffered justifications.113
Resorting to the mere “incantation of a purpose to promote the public health or safety” is an intellectually empty means for a government to justify its challenged gun control regulations. As the Supreme Court has made clear in other contexts, those justifications must and should be supported by scientifically verifiable empirical evidence. If the Second Amendment is ultimately given an individual right interpretation, studies exploring the efficacy of gun control regulations in reducing gun-related crime and violence (or in promoting other compelling state interests) will be needed to accurately balance the true benefits of the regulation against the costs imposed by infringements on the right.
As demonstrated by the recent accumulation of academic support, as well as the Fifth Circuit’s decision in Emerson, an individual right interpretation of the Second Amendment is a distinct possibility for the future. Such an interpretation would have many implications for the judicial review of challenged gun control regulations. This appendix has identified some of the issues raised by an individual right interpretation. First, courts and commentators will be required to attempt a more concrete delineation of the scope of an individual right. A comprehensive definition of the amendment’s scope can be used to identify those regulations that impact constitutionally protected activity and those that do not. Second, once an area of protected activity is identified, criteria must be developed for determining when a regulation places so significant a burden on the exercise of the right as to amount to an “infringement.” Finally, courts will be required to engage in fact-intensive balancing tests, weighing the cost of an infringement against the benefits to the compelling state interest in reducing gun-related crime and violence, to determine what infringements are “reasonable” and thus permissible.
With regard to the balancing of interests in making “reasonableness” determinations, courts as well as legislatures will be greatly aided by scientifically verified empirical studies that test the efficacy of various gun control measures in achieving their purported objectives. In other balancing contexts—including First Amendment and dormant Commerce Clause jurisprudence—the Supreme Court has emphasized the need for more than just appeals to the public interest. The availability of empirical data will make this balancing more accurate and reliable.