by Michael C. Dorf
(N.B.: My latest Verdict column discusses a recent Tenth Circuit ruling about so-called faithless electors, tracing a possible implication for a longstanding effort to circumvent the Electoral College. Today's blog post, however, is unrelated. It is also cross-posted on Take Care.)
Unless the Supreme Court dismisses New York State Rifle & Pistol Assoc Inc. v. City of New York as moot (as the respondents have urged), some time between now and the end of June 2020 the justices will decide their first major Second Amendment case in nearly a decade. Since the Court's landmark rulings in the Heller (2008) and McDonald (2010), the lower courts have allowed a wide range of prohibitions on firearm possession. The Supreme Court's refusal to review any of those decisions on its plenary docket--prior to the cert grant in NYS Rifle & Pistol--even led Justice Thomas, in a 2018 solo dissent from cert denial, to accuse his fellow justices of treating the Second Amendment as "a disfavored right."
I hope he's right about that. If not, maybe we will get a procedural reprieve. Perhaps the Court will dismiss as moot. If not, perhaps it will dismiss the writ as improvidently granted so that the lower courts can entertain arguments to the effect that Heller was wrongly decided based on evidence obtained by electronically searching 18th century documents, as proposed in an audacious brief and even more audacious motion for oral argument time by attorney Neal Goldfarb.
I agree with the respondents that the case is moot. On the merits of Heller, I also agree with Goldfarb that in the 18th century the term "bear arms . . . [o]verwhelmingly . . . had a military connotation." Or perhaps more accurately, he agrees with me, because the language I just quoted is from an article I wrote in 2000. Goldfarb says the following (kinda similar thing) in his brief: "in the overwhelming majority of the uses of bear arms in the corpus data, the phrase conveyed a military-related sense."
I'm not looking for credit. I hope Goldfarb succeeds. I just doubt that he will, because, while I'm not a 100% legal realist, on this topic I share my co-blogger Prof Eric Segall's view that the justices' contemporary values and druthers play a much larger role than linguistic analysis of the 18th century. I'd love to be proven wrong, but I'm not holding my breath.
The NYC case currently before the Court involves limits on transporting guns. It is one of a class of cases that pose the question whether, so long as the justices think that "bear arms" means "carry firearms," where can the right be limited? Heller and McDonald upheld a right to possession in the home, but Heller also perhaps implied that the right applies more broadly too. By affirming the government's power to ban firearms in "sensitive places" such as schools and government buildings, the Court could be read to have meant that the government may not ban firearms in all public places. Or perhaps Heller doesn't protect firearms outside the home after all, as I suggested here.
If and when the Court concludes that the New York case is not moot and schedules oral argument, there will be time enough to discuss just how much freedom to carry firearms in public the Second Amendment guarantees. For now, I want to say a word about the other category of restrictions the lower courts have been upholding: limits on assault weapons and on large-capacity magazines. For example, last week a panel of the Seventh Circuit made news by upholding just such a ban. It shouldn't have made news, because the court simply applied a nearly identical precedent. But in these times of frequent mass shootings, it was understandable that journalists would seize on the case.
That brings me to the title of today's blog post. Various jurisdictions that have banned large-capacity magazines define large-capacity differently. In New York State, a law provided that a gun owner can possess a firearm magazine with a ten-bullet capacity, which can be fully loaded at a shooting range or official shooting competition but otherwise can only be loaded up to seven bullets. (The reason for the disparity has to do with various amendments to the law to prevent many guns from becoming retroactively illegal.) Are seven bullets enough?
The Second Circuit thought that they were not enough for a ten-bullet magazine in a 2015 case (and the SCOTUS later denied cert). The ten-bullet magazine capacity limit was okay, in the court's view, but a prohibition on loading the additional three chambers did not bear a sufficiently close relationship to the law's aim to withstand intermediate scrutiny. As the court observed, a malefactor who wants to commit a mass shooting will surely disregard the seven-at-a-time rule, whereas a law-abiding citizen who purchases a ten (or eight or nine) bullet magazine will have a hard time ensuring that it loads only seven bullets at a time.
That seems sensible enough, I suppose, once one accepts all of the premises leading up to the last step of the analysis: The Second Amendment protects an individual right of firearms ownership; it applies to a 10-shooter, because that type of gun is "in common use"; intermediate scrutiny applies to a magazine-loading limit; and then, finally, a law that aims at mass shootings does not sufficiently advance the state's interest by limiting a 10-shooter to 7 rounds.
Here's another way to pose the core questions, however: What regime of firearms regulation, potentially including limits on the types of weapons and the extent to which they're loaded, best minimizes the aggregate risks from: (1) aggressors who might be stopped by firearms; (2) aggressors who wield firearms; (3) law-abiding citizens whose firearms accidentally discharge; and (4) law-abiding citizens whose firearms are used in suicides? To all of that, we might add that there are distributional concerns. A regime that minimizes aggregate risk to the population as a whole might be less effective at minimizing the risk to some sub-population, such as people who live in rural areas, or women, or people who are untrained in the use of firearms.
I don't know the right answers to the questions posed in the last paragraph. I do know that the courts seem like the wrong institution to tackle them, no matter how well or poorly they do at discerning the original public meaning of the terms that found their way into the Second Amendment.