The Future of Gun Regulation

by Michael Dorf

In a recent article in the University of Chicago Law Review, Duke Law Professors Joseph Blocher and Darrell Miller discuss how the law might treat incidental burdens on Second Amendment rights. A law imposes a direct burden on a right when the law targets the exercise of the right. By contrast, an incidental burden arises when a law applies to a broad category of conduct--much of it constitutionally regulable--but incidentally infringes a right.

For example, a regulation forbidding camping in national parks except in designated campgrounds is unobjectionable as applied to someone who sets up a tent directly adjacent to Old Faithful, but raises at least a prima facie issue under the First Amendment as applied to people spending the night in tents on the National Mall in Washington DC to protest homelessness policy. (The Supreme Court nonetheless upheld the law as applied to the homelessness protest in a 1984 case, applying what was essentially intermediate scrutiny.)

Just about any right can be the object of an incidental burden, but prior to the Blocher and Miller article, no one paid any serious attention to incidental burdens on Second Amendment rights. Nearly all of the focus had been on direct burdens of the sort at issue in cases like DC v. Heller and McDonald v. Chicago, in which a law specifically limits firearm possession. Yet, as Blocher and Miller explain, challenges to laws imposing incidental burdens on Second Amendment rights are not only conceivable; they are likely. Their article asks:
Does the Second Amendment apply to civil suits for trespass, negligence, and nuisance? Does the Amendment cover gun-neutral laws of general applicability like assault and disturbing the peace?
Rather than provide definitive normative answers, Blocher and Miller identify the stakes of the problem. Some concern the specifics of the Second Amendment. Others are more cross-cutting, borrowing from the somewhat conflicted case law regarding incidental burdens on other rights.

No doubt because I had previously written about incidental burdens (in a 1996 article in the Harvard Law Review), I was asked by the editors of the University of Chicago Law Review to comment on the Blocher and Miller article. I was happy to do so, because I think their paper is first-rate. My response--Incidental Burdens and the Nature of Judicial Review--appears in the online companion to the University of Chicago Law Review, The Dialogue. Here I will very briefly summarize my response and then make a further point about the likely future of Second Amendment rights.

My response article makes three basic points:

(1) Blocher and Miller somewhat undersell their achievement. Their analysis has important implications for direct burdens on Second Amendment rights, not just incidental burdens, because much of that analysis looks to the purpose of Second Amendment rights. For example, their approach has implications for direct limits that seek to make certain people categorically ineligible to possess firearms and for those that restrict any individual's ability to stockpile more weapons than are reasonably necessary for self-defense.

(2) Using the analysis set forth by Blocher and Miller as a launch pad, I draw a distinction between the Second Amendment and the First Amendment to which it is frequently compared by its champions: Unlike the First Amendment rights to free speech and free exercise of religion, the Second Amendment right to keep and bear arms cannot plausibly be read as including an equality norm. That observation also has potential implications for how courts ought to treat direct burdens on Second Amendment rights.

(3) As I explain using examples that I first developed on this blog, especially in response to Holder v. Humanitarian Law Project, we lack a coherent approach to figuring out what the "rule" that is being applied to someone is when that rule is a sub-rule that derives from the application to specific circumstances. I say: "Sometimes the application of a general rule or policy to particular conduct that appears to be the exercise of a right can be fairly characterized as targeted at the right, while sometimes it cannot or should not be so characterized." The problem isn't simply that the case law is internally inconsistent. The problem is that what seem like sensible intuitions sometimes point in one direction and other times point in other directions, making the formulation of any general approach problematic.

My response article is short (16 pages) so I don't see much point in summarizing it further. Anyone interested in more can read the article. Meanwhile, I want to conclude with a suggestion that the problems that Blocher and Miller identify could go away upon the confirmation of a ninth justice--either Merrick Garland or a different nominee of a President Hillary Clinton. (I'm not assuming the inevitability of a Clinton victory or of the Senate confirming any Democratic nominee; it's just that the hypothesis I want to explore depends on a fifth liberalish vote.)

The possibility of a solid liberal majority on the Supreme Court raises the question of which conservative precedents would likely be most vulnerable to being overruled. I confess to not having thought this question through too carefully--partly because I am not yet sure we will get a solid liberal majority--but if I were to make a list, I think it would have four categories:

1) Conservative Burger/Rehnquist/Roberts Court precedents that a liberal majority overrules.

2) Conservative Burger/Rehnquist/Roberts Court precedents that a liberal majority reads as narrowly as possible, essentially hollowing them out in much the way that, as described in an important 1996 Michigan Law Review article by Professor Carol Steiker, the Burger and Rehnquist Courts left the edifice of Warren Court criminal procedure jurisprudence standing, but severely blunted its impact by adding trapdoors to it. (The article is not available on a free database. Here's the first page from a pay one.)

3) Conservative Burger/Rehnquist/Roberts Court precedents that a liberal majority applies in reasonably good faith without extending them in the way that a conservative majority would.

4) Conservative Burger/Rehnquist/Roberts Court precedents that a liberal majority applies and extends much in the way that a conservative majority would.

I would guess that Heller and McDonald would likely fall into either category 2) or 3). (There isn't a sharp boundary anyway.) Litigants pressing for gun rights would lose nearly all cases in the Supreme Court, but the Court would not formally overrule Heller and McDonald.  The opinions would be issued over furious dissents by conservative justices claiming that the (liberal) majority was betraying Heller and McDonald.

The techniques for avoiding any extension of Heller and McDonald would necessarily vary based on the case, but it is easy to imagine that in any case involving an incidental burden, that fact would weigh heavily against the Second Amendment claim. There are, after all, good arguments for limiting various rights to protecting only against direct burdens, so the Court would be on defensible ground--even though there are also good arguments for granting protection against incidental burdens.

This prediction leads me to think that the Supreme Court will be a poor forum for addressing the interesting questions that Blocher and Miller raise. When everyone agrees that there is a right--as with free speech, say--then the argument over incidental burdens can be fairly joined. But where there is contestation, even if beneath the surface, over the wisdom of recognizing the right in the first place, then arguments over second-order questions such as how to treat incidental burdens on that right tend to be insincere. The accusations and counter-accusations of procedural distortion in the abortion case law make that clear. And as we have seen repeatedly in our public life, including most recently in the third presidential debate, gun rights rival abortion as a site of constitutional contestation.

Bottom Line: Blocher and Miller raise fascinating and important questions that we cannot reasonably expect the Supreme Court to address in good faith. Luckily, the law journals are available for that task!