OSD 84: Judge Dread

The big open legal question about the Second Amendment.

Last week we said that if you like guns and like reading court opinions, you’re going to have a busy few weeks. Well, let’s get busy. Amy Coney Barrett has been nominated to be the newest justice on the Supreme Court. What does that mean for guns?

The place to start is with a complete list of the hard lines that the Supreme Court has drawn about gun laws. Here goes:

  1. It’s unconstitutional for Washington, DC to completely ban the possession of handguns. (This was the 2008 landmark case District of Columbia v. Heller.)

  2. It’s unconstitutional for Washington, DC to require that you store your guns in disassembled or inoperable condition. (This was also Heller.)

  3. It’s unconstitutional for state and local governments to do the things from #1 and #2. (This was 2010’s McDonald v. Chicago.)

And that’s about it; the Court has said almost nothing else about gun rights. (The main exception is 1939’s United States v. Miller, an odd case with a narrow, one-off ruling that upheld the National Firearms Act as applied to short-barreled shotguns.)

In Heller, the Court ruled that the Second Amendment protects an individual right to own firearms, and that made DC’s then-bans unconstitutional. But which gun laws are constitutional? The Court mostly avoided that question.

In most constitutional disputes, courts use one of three “tiers of scrutiny” to evaluate a law. Which tier they use depends on the subject at hand. The definition of each tier is as follows:

Rational basis review

This is the tier that is most deferential to the government. To be constitutional under rational basis review, “the statute or ordinance must have a legitimate state interest, and there must be a rational connection between the statute’s/ordinance’s means and goals”. The importance of the state interest and the directness (or lack thereof) of the connection don’t matter. If a judge can imagine a rational connection, however tenuous or unproven, the law will be upheld. This standard of review is used for questions of economic liberty, among others.

Intermediate scrutiny

This is the middle notch, and is defined like so:

To pass intermediate scrutiny, the challenged law must:

  1. further an important government interest

  2. and must do so by means that are substantially related to that interest

Think of this as “rational basis that actually means something”. It also happens to be the tier of scrutiny that most federal appellate courts have applied to gun laws, in the absence of guidance from the Supreme Court. But those courts’ version of intermediate scrutiny has tended to be extremely deferential as to the “means that are substantially related” requirement. To overgeneralize slightly, courts are often innumerate and let slide statistical arguments that wouldn’t be taken seriously in any professionally numbers-driven field. But broad, speculative “statistics” about the value of, say, a magazine capacity ban, usually pass muster in federal court under intermediate scrutiny.

Strict scrutiny

This is the strictest tier, and it applies to fundamental enumerated rights and certain forms of discrimination. It requires that a law:

  1. is necessary to a “compelling state interest”;

  2. is “narrowly tailored” to achieving this compelling purpose; and

  3. uses the “least restrictive means” to achieve the purpose.

Most gun laws would not survive strict scrutiny. So with a Supreme Court nomination in process, there are (quite reasonably) a lot of opinions flying around about which tier of scrutiny the Court should (finally) decree applies to gun laws. With the Court seemingly evenly split on gun rights, Amy Coney Barrett’s vote is the one that’ll determine the answer. But…

Text, history, and tradition

Some people believe that the Supreme Court has said which tier of scrutiny to use for gun laws: none of them. Heller found that arms in common use for lawful purposes are protected under the Second Amendment. That, along with some other passages from the ruling, have been interpolated by some judges into a “text, history, and tradition” test for gun laws.

One of those judges is Brett Kavanaugh. In 2011 he was a judge on the DC Circuit Court of Appeals and dissented from a ruling that upheld DC’s assault weapons ban. He wrote:

In sum, our task as a lower court here is narrow and constrained by precedent. We need not squint to divine some hidden meaning from Heller about what tests to apply. Heller was up-front about the role of text, history, and tradition in Second Amendment analysis — and about the absence of a role for judicial interest balancing or assessment of costs and benefits of gun regulations. Gun bans and gun regulations that are longstanding — or, put another way, sufficiently rooted in text, history, and tradition – are consistent with the Second Amendment individual right. Gun bans and gun regulations that are not longstanding or sufficiently rooted in text, history, and tradition are not consistent with the Second Amendment individual right. Our role as a lower court is simply to apply the test announced by Heller to the challenged provisions of DC’s new gun laws.

So here you have a test that’s arguably more strict than strict scrutiny: if a gun law isn’t rooted in text, history, and tradition, then it’s unconstitutional, end of story. No balancing the right against the state’s reasons for curtailing the right. As Justice Antonin Scalia put it in Heller:

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. 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.

So far in her time as a judge, Amy Coney Barrett has written one gun-rights–related opinion. It was a dissent, where she argued that the lifetime ban on gun possession by felons is unconstitutional when it comes to some nonviolent felons. Read the first paragraph and see if you spot a theme:

History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun. In 1791—and for well more than a century afterward—legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.

That’s not a tiers-of-scrutiny approach, it’s text, history, and tradition. What will that mean if she gets onto the Court? There’s no way to know, but it’s promising. Justices Thomas, Kavanaugh, and Gorsuch are all on record with opinions (all dissents) friendly to the text, history, and tradition test. Justice Alito isn’t, but his concurrence in Caetano v. Massachusetts (a case about stun gun bans) leaves little doubt that he’s eager to strike down some gun laws. A Justice Barrett would make it five votes. And five is all it takes. We’ll see.


This week’s links

Our own BJ Campbell interviews Dr. Michael Siegel on the “2019 National Lawful Use of Guns Survey”

Not often that you see a public health org post an hour-long video from RECOIL TV, but hey, that’s Open Source Defense for ya.

Northwell Health adding query about guns to ER patient screenings

With a $1.4 million grant from the National Institutes of Health, Northwell Health (the largest healthcare system in New York State) is going to trial a program in three of its ERs where patients will be asked about any guns they own:

As part of the Northwell study, clinicians in the three hospitals' emergency departments will ask patients specific questions about having firearms in their homes and determine their risk of injury. Each response is scored and embedded into the patient’s electronic health record, which will help guide discussions and establish next steps for care. Motivational interviews, education and other resources will also be available.

This is a tidy example of people barreling into gun culture with good intentions but very little understanding of the context. The folks who funded this study think they’re asking, “Do you own any guns? We’d like to make sure you’re safe with them.” But what they are asking is, “Do you own any guns? Our hospital is making a registry so that we can track and educate you.” People who aren’t gun owners often have no idea how that’ll sound to people who are gun owners.

The underlying disconnect is something that the sociology professor David Yamane (who writes the Gun Culture 2.0 blog) talks about often: because of a lack of familiarity with gun owners, the public health community pathologizes gun ownership, treating it as an inherent harm to be managed. More on that in our piece, “Guns are specifically designed to kill: the logic error behind the whole gun debate”.

Universal silencer standard: HUB 1.375×24 TPI

Just discovered this article from back in January. Attachments and adapters in the suppressor industry are like computers were before USB came along. But that’s finally starting to improve. Look for the industry keep standardizing as it grows — because another lesson from the computer world is that building on top of standards is how you get to the mass market.

Post-bankruptcy, Remington’s brands are being sold off to various new owners

The major ones:

  • Ruger will acquire Marlin.

  • Vista Outdoors will acquire Remington Ammunition.

  • JJE Capital Holdings (the private equity firm that owns Palmetto State Armory) will acquire DPMS, H&R, Stormlake, and AAC.

  • Franklin Armory will acquire Bushmaster.

This is probably good news. Selling the brands off to better-run companies will put them in a better position to succeed.


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