Is “heightened scrutiny”—including intermediate and strict scrutiny—a balancing test? If so, would this test be prohibited under Heller and McDonald, which expressly rejected balancing tests in Second Amendment jurisprudence?

In his dissent in Heller v. District of Columbia, Judge Kavanaugh answers both of these questions affirmatively. In a special “appendix” to the majority added in response to Kavanaugh’s dissent, Judge Ginsburg (my former Prof) disputes both of these characterizations.

Ginsburg’s Appendix

Here is how Ginsburg phrases it for the majority.

A substantial portion of the dissent is devoted to arguing Heller and McDonald preclude the application of heightened (intermediate, or for that matter, strict) scrutiny in all Second Amendment cases. The dissent reasons that Heller rejected balancing tests and that heightened scrutiny is a type of balancing test . . . Our dissenting colleague asserts (at 25) heightened scrutiny is also “a form of interest balancing” and maintains that strict and intermediate scrutiny “always involve at least some assessment of whether the law in question is sufficiently important to justify infringement on an individual constitutional right.”

The majority reads the Court’s rejection of Justice Breyer’s “interest-balancing” inquiry in light of its focus on “proportionality,” that is Breyer “he would have had us weigh this governmental interest against “the extent to which the District’s law burdens the interests that the Second Amendment seeks to protect.” Ginsburg distinguishes the type of test the Court rejected in Heller with the way Kavanaugh characterizes strict scrutiny balancing tests.

The Court there said, Justice Breyer’s proposal did not correspond to any of “the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis),” 554 U.S. at 634, but was rather “a judge-empowering ‘interest-balancing inquiry’” that would have a court weigh the asserted governmental interests against the burden the Government would place upon exercise of the Second Amendment right, a balancing that is not part of either strict or intermediate scrutiny.

Next, Ginsburg disagrees with Kavanaugh’s assertion that the Court rejected Breyer’s attempts to balance costs and benefits

Moreover, strict and intermediate scrutiny do not, as the dissent asserts (at 19), “obviously require assessment of the ‘costs and benefits’ of government regulations.” Rather, they require an assessment of whether a particular law will serve an important or compelling governmental interest; that is not a comparative judgment.

I disagree with Ginsburg, and agree with Kavanaugh here. As I’ve noted elsewhere, scrutiny is effectively a question of the respective level of social costs the Court is willing to bear, and that determination directly plays into the respective levels of liberty and safety. [Flesh this out]

Ginsburg’s strongest argument—and one I think is almost certainly right—is that if the Court wanted to eliminate strict scrutiny, they would have said so.

If the Supreme Court truly intended to rule out any form of heightened scrutiny for all Second Amendment cases, then it surely would have said at least something to that effect. Cf. Heller, 554 U.S. at 628 n.27 (expressly rejecting rational basis review). The Court did not say anything of the sort; the plaintiffs in this case do not suggest it did; and the idea that Heller precludes heightened scrutiny has eluded every circuit to have addressed that question since Heller was issued.

The failure to adopt a tier of scrutiny was no doubt a concession to Justice Kennedy for a 5th vote without a concurring opinion (who said Scalia can’t compromise!). Kavanaugh must be wrong here. But he is right, more generally, about his conception about scrutiny, balancing tests, and social costs.

This passage hammers in Kavanaugh’s point that strict scrutiny cannot be the appropriate standard of review:

That language from McDonald is critically important because strict and intermediate scrutiny obviously require assessment of the “costs and benefits” of government regulations and entail “difficult empirical judgments” about their efficacy – precisely what McDonald barred. McDonald’s rejection of such inquiries, which was even more direct than Heller’s, is flatly incompatible with a strict or intermediate scrutiny approach to gun regulations.  . . .

The McDonald Court’s response to Justice Breyer is quite telling for our purposes: The Court dismissed the suggestion that courts in Second Amendment cases would need to assess the strength of the government’s regulatory interests, or determine whether the regulation was appropriately tailored, or consider the alternatives. In other words, the Court declined to conduct the kinds of inquiries that would need to be conducted under a form of strict or intermediate scrutiny.

Here Kavanaugh finds that Heller rejected all balancing tests–including strict and intermediate scrutiny:

In addition, the premise of the majority opinion’s more general point – that Heller’s rejection of balancing tests does not mean it rejected strict and intermediate scrutiny – is incorrect. Strict and intermediate scrutiny are balancing tests and thus are necessarily encompassed by Heller’s more general rejection of balancing. . . . As in their original formulations, the successor strict and intermediate scrutiny tests applied today remain quintessential balancing inquiries that focus ultimately on whether a particular government interest is sufficiently compelling or important to justify an infringement on the individual right in question.

Here, Kavanaugh sees scrutiny in terms of burden, and placing thumbs on scales:

To be sure, application of the strict and intermediate scrutiny tests yields categorical results and rules over time. And strict scrutiny in particular places a heavy thumb on the scale in favor of the individual right in question, meaning the balance is often struck against the government. But the tests are undoubtedly balancing tests that require a contemporary judicial assessment of the strength of the asserted government interests in imposing a particular regulation. If that interest is deemed sufficiently strong, and the law is deemed to be appropriately tailored to serving that interest given the potential alternatives, then the law generally overcomes the individual right. That is a form of interest balancing. It is true that strict and intermediate scrutiny come in a variety of flavors and are not always applied in the exact same way in all settings (as illustrated by Justice Breyer’s extensive explanation in his Heller dissent). But they always involve at least some assessment of whether the law in question is sufficiently important to justify infringement on an individual constitutional right. That’s balancing. And Heller and McDonald rejected the use of balancing tests – including, therefore, strict or intermediate scrutiny – in fleshing out the scope of the Second Amendment right.

In this concluding paragraph, Kavanaugh addresses directly the “public safety interests at stake”–in other words, the social costs.

This is a case where emotions run high on both sides of the policy issue because of the vital public safety interests at stake. As one who was born here, grew up in this community in the late 1960s, 1970s, and 1980s, and has lived and worked in this area almost all of his life, I am acutely aware of the gun, drug, and gang violence that has plagued all of us. As a citizen, I certainly share the goal of Police Chief Cathy Lanier to reduce and hopefully eliminate the senseless violence that has persisted for too long and harmed so many. And I greatly respect the motivation behind the D.C. gun laws at issue in this case. So my view on how to analyze the constitutional question here under the relevant Supreme Court precedents is not to say that I think certain gun registration laws or laws regulating semi-automatic guns are necessarily a bad idea as a matter of policy. If our job were to decree what we think is the best policy, I would carefully consider the issues through that different lens and might well look favorably upon certain  regulations of this kind.    ….

D.C. believes that its law will help it fight violent crime. Few government responsibilities are more significant. That said, the Supreme Court has long made clear that the Constitution disables the government from employing certain means to prevent, deter, or detect violent crime. See, e.g., Mapp v. Ohio, 367 U.S. 643 (1961); Miranda v. Arizona, 384 U.S. 436 (1966); City of Indianapolis v. Edmond, 531 U.S. 32 (2000); Crawford v. Washington, 541 U.S. 36 (2004); Kennedy v. Louisiana, 554 U.S. 407 (2008); District of Columbia v. Heller, 554 U.S. 570 (2008). In the words of the Supreme Court, the courts must enforce those constitutional rights even when they have “controversial public safety implications.” McDonald v. City of Chicago, 130 S. Ct. 3020, 3045 (2010) (controlling opinion of Alito, J.).

In sum, I think Judge Kavanaugh wrote the opinion that only Justice Scalia, joined by Justice Thomas, would agree with.