Guns, Constitutional Tests, and Games

by Michael Dorf

My latest Verdict column asks whether a federal ban on bump stocks would violate the Second Amendment. The short answer is no, but as I explain, the full answer is a bit more complicated. During the litigation that culminated in the 2008 SCOTUS ruling in DC v Heller, it was taken for granted by all the lawyers and justices that the federal ban on possession and transfer of machine guns made after 1976 is valid. Indeed, as I note in the column, Walter Dellinger, arguing for DC, labored to persuade the Court that machine guns are indistinguishable (for Second Amendment purposes) from other firearms and that therefore the Court ought not recognize an individual constitutional right under the Second Amendment. The ultimate opinion for the Court strongly hints in dicta that the machine gun ban is valid, but doesn't do a very good job of explaining why.

My column argues that the actual test the Court announced for whether various types of weapons count as "arms" under the Second Amendment seems to point in favor of counting machine guns: There are enough of them in circulation--about half a million--to count as in "common use" and thus not "unusual." To be clear, I don't think the courts are actually going to invalidate the machine gun ban, but I do think that the explanation for the validity of the ban is problematic.

The column uses that fact as an occasion to discuss the validity of a hypothetical law that would ban bump stocks, but there is also a more immediate question. Various states have banned so-called assault weapons, especially semiautomatic rifles such as the AR-15. There is currently pending before the Supreme Court a cert petition by the plaintiffs who challenged Maryland's ban on semiautomatic rifles. They lost in the district court, won before a panel of the Fourth Circuit, and then lost before the Fourth Circuit sitting en banc. The cert petition alleges a circuit split regarding the proper test for determining whether arms are in "common use" but no split regarding bans on semiautomatic rifles or large-capacity magazines. Accordingly, it is difficult to predict whether the SCOTUS will grant cert.

In any event, I want to use the balance of this essay to address a contention made back in 2011 by Judge Kavanaugh in his dissent from the opinion of the DC Circuit upholding the District's semiautomatic rifles ban. All of the judges on the panel agreed that semiautomatic rifles count as "arms" for Second Amendment purposes. The question was how to determine whether a law (more or less) banning this category of arms was nonetheless valid. Applying intermediate scrutiny, the majority said yes. By contrast, Judge Kavanaugh said no, but he gave a different answer to the threshold question of what standard of scrutiny applies. Noting that courts were divided over whether strict or intermediate scrutiny applies to laws infringing the Second Amendment, Judge Kavanaugh said neither. Instead, he wrote, courts should “assess gun bans and regulations based on text, history, and tradition.” In so stating, he echoed a point that Chief Justice Roberts made during the oral argument in Heller. There is a superficial appeal to their idea, but, as I shall explain, it is unworkable.

Judge Kavanaugh's reading of Heller is plausible in the sense that it is possible to read the majority opinion as saying that neither strict nor intermediate nor any other level of scrutiny applies. Indeed, CJ Roberts hinted at that approach during the Heller oral argument. Here is what he said:
Well, these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can't take the gun to the marketplace and all that, and determine . . . how this restriction and the scope of this right looks in relation to those? I'm not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up, but I don't know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?
There are at least two ways to understand what CJ Roberts was saying here (and thus what Justice Scalia was saying for the Court in the ultimate opinion in Heller). First, the Chief might have just been making a point about timing. Heller was the first Second Amendment case in which the Court was going to find an individual right to possess firearms for self-defense and so it was not yet necessary to articulate a test. We can understand this view as reflecting a principle of judicial restraint. Eventually the Court could articulate a test, CJ Roberts could be saying, but under any likely standard, the DC ordinance challenged in Heller will fail, so there's no need to articulate a test in this case.

If that's what CJ Roberts and ultimately the Court in Heller were up to, then the lower court judges who have tried to fill the gap by arguing for either strict or intermediate scrutiny are on the right track. As cases that are closer to the line come up, it's necessary to know what test to apply.

Yet I don't think that the quoted language is chiefly advocating a go-slow approach. I think it is probably best read in the way that Judge Kavanaugh read the Heller opinion--as rejecting any "test" or "standard" in favor of just applying the Constitution directly, i.e., applying the "text, history, and tradition" regarding the Second Amendment directly.

Anyone who has taken a course in constitutional law, not to mention taught it for 25 years, as I have, will have some sympathy for that view. The various tests, sub-tests, and exceptions often do seem like "baggage," in the Chief Justice's phrasing.

Consider two examples. First, as Prof. Colb noted last week in her Verdict column and accompanying blog post, there is now before the Court a case that presents the question whether the fact that the police search a motorcycle rather than a car and/or the fact that the motorcycle is parked in a driveway rather than pulled over on the street puts the case into one or both hitherto unrecognized exceptions to the automobile exception to the warrant requirement that the Court has found in the Fourth Amendment, which it has made applicable to the states via the incorporation doctrine it has found in the Fourteenth Amendment. In other words, the case calls for the creation or rejection of one or more new judge-made exceptions to a judge-made exception to a judge-made doctrine that, via another judge-made doctrine, construes the Fourth and Fourteenth Amendments.

Second, consider levels of scrutiny. In the late 1930s, the Supreme Court abandoned close judicial scrutiny of laws infringing the freedom of contract. But to make clear that it wasn't thereby abandoning its role as guardian of rights, it allowed--in footnote 4 of the Carolene Products case--that  "[t]here may be narrower scope for operation of the presumption of constitutionality" when laws infringe specific provisions of the Bill of Rights, when they burden discrete and insular minorities, and when they entrench unfair forms of representation. That idea of "narrower scope" came to be strict scrutiny, which was contrasted with mere rational basis scrutiny. But over time the two-level scheme became three levels, once intermediate scrutiny was added. Then we got what is sometimes called "rational basis with bite." In addition, affirmative action programs appear to be judged by a somewhat watered down version of strict scrutiny. And the intermediate scrutiny applicable to sex-based classifications that turn on genuine biological differences between men and women is considerably milder than the intermediate scrutiny applicable to classifications that rely on traditional sex-role stereotypes. Depending on how one counts, there are anywhere from six to eight levels of scrutiny.

Thus, it is tempting to throw up one's hands and ask what any of this has to do with the Constitution. Tempting but ultimately misguided. Even if one thinks that any particular doctrine is unwise or disconnected from the underlying constitutional text or value, the enterprise of devising constitutional tests is inevitable and, on the whole, constraining. The inevitability point was made well by Prof. Richard Fallon twenty years ago in his Harvard Law Review Foreword, Implementing the Constitution (and later in a book with the same title, neither available free via the Internet). Here's what Fallon wrote in the HLR Foreword:
Even when general agreement exists that the Constitution reflects a particular value or protective purpose, questions of implementation often remain. For example, it may be a purpose of the First Amendment to protect against governmental efforts to stifle dissent, or of the Commerce Clause to prevent “‘economic Balkanization’ and the retaliatory acts of other [s]tates that may follow.” But the norms reflecting purposes such as these are too vague to serve as rules of law; their effective implementation requires the crafting of doctrine by courts. The Supreme Court has responded accordingly. By no means illegitimately, it has developed a complex, increasingly code-like sprawl of two-, three-, and four-part tests, each with its limited domain. 
Critics have protested that the Court's multipart tests are inappropriate because they do not plausibly reflect the Constitution's true meaning. But this criticism misses a crucial point. Identifying the “meaning” of the Constitution is not the Court's only function. A crucial mission of the Court is to implement the Constitution successfully. In service of this mission, the Court often must craft doctrine that is driven by the Constitution, but does not reflect the Constitution's meaning precisely. 
The alternative view--the one reflected in the statement by CJ Roberts during the Heller argument and by Judge Kavanaugh in his dissent in the DC Circuit semiautomatic rifles case--rests on the premise that the constitutional text, either standing alone or in conjunction with history and tradition, can somehow uniquely determine outcomes. Sometimes it can, but usually it cannot.

I can illustrate that point, finally, with a nice metaphor that I adapt from a point made by Prof. Mitchell Berman, who used the metaphor at a conference he and I attended some years ago. (He may have also used it in print or borrowed it in turn from someone else.) It goes like this:

Suppose Jane asks Joe if he wants to play a game. "Why?", Joe asks.

Jane answers: "To have fun. I like Scrabble. Shall we play that?"

"No," says Joe. "I don't like Scrabble."

"Okay," Jane says, "how about Go Fish?"

"I don't like that one either."

"Well, what game do you want to play?"

"I don't want to play any game."

Concerned, Jane asks "But don't you want to have fun?"

"Of course I do," Joe responds. "I just don't see why we have to play a game with made-up rules about letter tiles or cards or whatever to have fun. We should just have fun directly."

Joe is like CJ Roberts or Judge Kavanaugh. He doesn't realize that playing a game with complex and even somewhat arbitrary rules is the means by which to have fun. Meanwhile, CJ Roberts and Judge Kavanaugh do not seem to realize that constitutional tests, though complex and somewhat arbitrary, are the means by which to give effect to the Constitution.