The Second Amendment in Exile

by Michael Dorf

On Monday the US Court of Appeals for the Second Circuit upheld most of the provisions of Connecticut and New York laws limiting assault rifles and magazine size that were challenged under the Second Amendment as made applicable to the states in the McDonald case. The ruling follows a fairly familiar pattern that has emerged in the lower courts following DC v. Heller and McDonald. Here is a summary of the court's reasoning:

(1) The court determined whether the weapons banned were in "common use" and "typically possessed by law-abiding citizens for lawful purposes." The appeals court found that, although the banned weapons are not as common as the handguns at issue in the SCOTUS cases, they are common enough to satisfy the common use requirement and that, while there is some doubt about the numbers, sufficiently many law-abiding citizens possess these weapons that they satisfy the second requirement as well.

(2) The court next determined that because the state laws completely ban the relevant kinds of firearms, they regulate the "core of the right" and impose a "severe burden." Accordingly, the court thought that the bans trigger heightened scrutiny.

(3) Following the practice of other courts to have decided post-Heller/McDonald Second Amendment cases, the Court of Appeals decided to apply intermediate scrutiny. Heller and McDonald themselves rule out rational-basis scrutiny. The Appeals Court opinion is very terse about why it chooses intermediate rather than strict scrutiny, focusing on the fact that other kinds of firearms remain available. It's not obvious why that is relevant to deciding what level of scrutiny to apply, rather than to deciding whether the appropriate level of scrutiny is satisfied, but other courts have also applied intermediate scrutiny.

(4) Applying intermediate scrutiny, the appeals court upheld the bans on assault rifles despite their fairly broad definition of what counts as an assault rifle. The unusual risk of multiple, serious wounds to multiple victims suffices, according to the court, to show that these weapons are especially dangerous, and thus that the bans are justified. They are sufficiently targeted to prevent mass shootings. The court likewise upheld the ban on sales of new large-capacity (more than ten-round) magazines. However, the court invalidated Connecticut's ban on a single non-semi-automatic weapon, the Remington Tactical 7615, a pump‐action rifle that, the court said, fell outside of the rationales offered in support of banning the other weapons.

(5) The court also invalidated NY's prohibition on loading a weapon with more than seven rounds at a time. The court reasoned that someone intent on committing a mass shooting will fill the magazine to the full ten rounds, so there is no substantial interest in limiting law-abiding owners of weapons with a ten-round capacity to seven rounds at a time.

Now some analysis. I have little doubt that eventually the SCOTUS will take another Second Amendment case. Although the appeals court opinion here largely harmonizes its reasoning and result with rulings by other circuits, substantial circuit splits will emerge. There is, moreover, enough uncertainty in the doctrine as a whole that it is hard to imagine the Supreme Court leaving the field completely clear for the lower courts.

In my capacity as educator and casebook editor, I can and do pose questions about how to fill in the details. Is intermediate scrutiny the right standard? What kind of intermediate scrutiny? Can a state or municipality ban open carry? Concealed carry? One or the other but not both? What about weapons (like knives) that are not firearms? And so forth.

However, as an unreconstructed skeptic of the entire enterprise of using the Second Amendment as a vehicle for protecting private firearm possession for self-defense, I want to continue to provide tools for resisting that enterprise. In that regard, consider step 1 in the foregoing analysis. As the dissenters in Heller/McDonald note, if there is a new kind of firearm, the government can ban it initially but if the government waits too long the weapon will enter common use and be protected. Similarly, the idea that a kind of firearm is used "by law-abiding citizens for lawful purposes" is circular. If a category of firearm is proscribable then, by definition, its use for any private purpose is unlawful.

Suppose someone invents a death-ray app for smartphones and that lawmakers in northeastern states immediately ban it. However, legislators in pro-gun states do not ban the app and it quickly becomes common. Does the fact that Texas (say) has permitted the death-ray app mean that it has now entered common use so that New York's ban--which was initially valid--has now become invalid? To my mind, this sort of example shows that, in addition to being based on law-office history, the Heller/McDonald framework is not well thought out.

The Court in Heller and McDonald grafted a self-defense function onto a militia-focused Second Amendment. I could live with that, I suppose, if the Court had done so with real sensitivity because (as I elaborated in the article linked above) I share the view that the Constitution ought to be construed to protect some right of self-defense, including, in extremis, armed self-defense. But the doctrine the Court has fashioned for that purpose under the Second Amendment makes little sense.

Consider another hypothetical. Suppose that someone develops a stun-ray gun that operates over distances as great as conventional firearms but only incapacitates its target for ten minutes. Sound policy would say that people ought then to be permitted to use these stun-ray guns to defend themselves but not to use lethal firearms. A constitutional right that really focused on self-defense would then allow that the government could ban lethal firearms so long as it let people possess stun-ray guns. But the Heller/McDonald framework would not reach that result. Imagine that the federal government immediately banned stun-ray guns (perhaps because the existing gun lobby feared that they would undermine their business). Then there would be no Second Amendment protection for stun-ray guns because they would have no opportunity to come into public use. The Heller/McDonald framework would lead to the perverse result that people could defend themselves with lethal but not non-lethal means. This makes no sense--and further illustrates the folly of using the Second Amendment as the basis for a right of lethally-armed self-defense.

Those of us who think the Court erred badly in Heller/McDonald can, when wearing our exegetical hats, play along with the doctrine. But we should not lose sight of the fact that the foundation is rotten. We should keep in view the real Second Amendment, the one that is all about preserving state militias and can at most serve as a textual hook that, from a historical perspective, accidentally identifies a value of self-defense that may be useful for fleshing out an unenumerated right. That real Second Amendment is in exile now, but keeping it in mind keeps alive the possibility that the Court could some day--perhaps in the not-too-distant future--abandon the journey it began in Heller.