Instant Analysis: Nordyke v. King (2011)

May 2nd, 2011

The 9th Circuit issued an opinion in Nordyke v. King, deciding that the Second Amendment does not protect the right of the Nordykes to hold a gun show on county fairgrounds. H/T Eugene Volokh. I will update this post as I make my way through the opinion.

Judge O’Scannlain, who wrote the opinion the Supreme Court considered in McDonald, began his discussion of the standard of review:

Because the Supreme Court has yet to articulate a standardof review in Second Amendment cases, that task falls tothe courts of appeals and the district courts. It has been suggestedthat only regulations which substantially burden theright to keep and to bear arms should receive heightened scrutiny.See United States v. Masciandaro, ___ F.3d ___, 2011WL 1053618, at *11 (4th Cir. 2011); United States v. Chester,628 F.3d 673, 680-83 (4th Cir. 2010); United States v. Marzzarella,614 F.3d 85, 89 (3d Cir. 2010); Heller v. District ofColumbia, 698 F. Supp. 2d 179, 188 (D.D.C. 2010). Othercourts would apply strict scrutiny to all gun-control regulations.See United States v. Engstrum, 609 F. Supp. 2d 1227,1231-32 (D. Utah 2009).6

FN6- We recently upheld the constitutionality of 18 U.S.C. § 924(c)(1)(A),which criminalizes the possession of a gun in furtherance of a drug crime,against a Second Amendment challenge. See United States v. Potter, 630F.3d 1260 (9th Cir. 2011). But we declined to adopt a standard of reviewfor Second Amendment analysis in that case.

This may be potentially significant, in that it suggests that certain violent crimes (possession of a gun in furtherance of a drug crime) is held to a different standard of scrutiny. This mirrors my proposal in The Constitutionality of Social Cost to bifurcate Second Amendment challenges based on the actor’s propensity to harm others.

The Court bases its analysis on the “substantial burden” elements from Heller and McDonald, which mirrors Eugene Volokh’s article:

The Supreme Court’s reasoning in Heller and McDonald suggests that heightened scrutiny does not apply unless a regulation substantially burdens the right to keep and to bear arms for self-defense.

Next O’Scannlain rejected the application of strict scrutiny. The following passage, which I need to parse closely, closely related to my work on social cost. No citation here, but there may as well have been:

Conversely, applying strict scrutiny to every gun-control regulation would be inconsistent with Heller’s reasoning. Under the strict scrutiny approach, a court would have to determine whether each challenged gun-control regulation is narrowly tailored to a compelling governmental interest (presumably, the interest in reducing gun crime). But Heller specifically renounced an approach that would base the constitutionality of gun-control regulations on judicial estimations
of the extent to which each regulation is likely to reduce such crime.

A few points here. First, O’Scannlain expressly rejects strict scrutiny. This parallels Justice Breyer’s dissent which rejected strict scrutiny. As I noted:

Breyer finds that the “adoption of a true strict-scrutiny standard for evaluating gun regulations would be impossible.” In light of the fact that “almost every gun-control regulation will seek to advance (as the one here does) a ‘primary concern of every government—a concern for the safety and indeed the lives of its citizens.’”33 Indeed, “the Government’s general interest in preventing crime” is “compelling.”34

Here we see a lower court citing Scalia, but embracing Breyer.

Second, O’Scannlain writes what is implicit in Heller and McDonald. The key interest is reducing harm that may result from exercising the Second Amendment, what he dubs quite simply “gun crime,”—or as I call it, the constitutionality of social cost.

Third, Heller did not “renounced an approach that would base the constitutionality of gun-control regulations on judicial estimations of the extent to which each regulation is likely to reduce such crime.” They did so implicitly through the pragmatic Dicta about “sensitive places” and “long-standing prohibitions.” As I demonstrate in my article, these are limitations based purely on a social cost calculus, and require the “judicial estimations of the extent to which each regulation is likely to reduce such crime.”

O’Scannlain continued:

Indeed, the Heller majority rejected Justice Breyer’s proposed “interest-balancing” test that would ask “whether the statute burdens a protected interest . . . out of proportion to the statute’s salutary effects upon other important governmental interests.” Id. at 689-90 (Breyer, J., dissenting). The problem with Justice Breyer’s test was not that it would require judges to determine the burden that gun-control regulations impose on the right to keep and to bear arms; indeed, as demonstrated above, the Heller majority engaged in just that analysis.

Precisely. The Heller and McDonald majorities purported to reject an interest-balancing approach, yet that is precisely what they did.

Rather, the majority rejected such test because it would allow judges to constrict the scope of the Second Amendment in situations where they believe the right is too dangerous. See id. at 634 (majority opinion) (“The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.”); id. (“A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.”). But applying strict scrutiny to every gun-control regulation would require courts routinely to make precisely those types of government interest assessments.

I concur that the McDonald Court purported to eschew social cost as a factor to consider, but as I write at some length in my article, that is precisely what they did. Further, this passage is somewhat confusing. Strict scrutiny would require Judges to make these determinations; but intermediate scrutiny or substantial burden analysis would not? Why is intermediate scrutiny any better? The only difference, as far as I can tell, is the state has less of a burden, and the plaintiff has a greater burden to show unconstitutionality.

This passage is absolutely key:

Just as important as what Heller said about a government-interest approach is what Heller did not say. Nowhere did it suggest that some regulations might be permissible based on the extent to which the regulation furthered the government’s interest in preventing crime. Instead, Heller
sorted such regulations based on the burden they imposed on the right to keep and to bear arms for self-defense.

I think O’Scannlain’s reading of Heller is generous, but his analysis mirrors Volokh’s substantial burden test. Heller did not “suggest that some regulations might be permissible based on the extent to which the regulation furthered the government’s interest in preventing crime,” but it implicitly left that topic open. I’m glad to see O’Scannlain close that “loophole” (no gun show pun intended).

Accordingly, the Court adopted a “substantial burden framework”:

We are satisfied that a substantial burden framework will prove to be far more judicially manageable than an approach that would reflexively apply strict scrutiny to all gun-control laws. As McDonald recognized, “assess[ing] the costs and benefits of firearms restrictions” requires “difficult empirical judgments in an area in which [judges] lack expertise.” 130 S. Ct. at 3050. Indeed, whether a gun-control regulation serves the government’s interest in safety is likely to be a dif- ficult question to answer. See Heller, 554 U.S. at 702 (Breyer, J., dissenting) (“[E]mpirically based arguments . . . cannot prove either that handgun possession diminishes crime or that handgun bans are ineffective.”); Volokh, supra, at 1461 (arguing that it “is likely to be especially hard” to “estimate the effectiveness of [a gun-control] law in preventing future crime and injury”).

In O’Scannlain’s discussion about strict scrutiny, he notes that it will be difficult to determine if a regulation “is likely to be effective” is difficult. This supports my contention that many rationales for gun control regulations are ex ante, rather than ex poste, in that they require a deprivation of liberty before any danger in order to mitigate some potential future harm:

Applying strict scrutiny to every gun regulation would require courts to assess the effectiveness of a myriad of guncontrol laws. Whenever a law is challenged under the Second Amendment, the government is likely to claim that the law serves its interest in reducing crime. See, e.g., Defs.’ Br. at 19 (asserting that the Ordinance serves the County’s interest in “minimiz[ing] the risk of shootings”). Because the Supreme Court has already held that “the Government’s general interest in preventing crime” is “compelling,” United States v. Salerno, 481 U.S. 739, 754 (1987), the question, under strict scrutiny, would be whether the regulation is narrowly tailored
to that interest. But courts cannot determine whether a guncontrol regulation is narrowly tailored to the prevention of crime without deciding whether the regulation is likely to be effective (or, at least, whether less burdensome regulations would be as effective). Sorting gun-control egulations based on their likely effectiveness is a task better fit for the legislature. Cf. Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 Harv. L. Rev. 1274, 1291 (2006) (“A test may be deemed judicially unmanageable if it would require courts to make empirical findings or predictive judgments for which they lack competence.”).

As I noted in my article, these citations to Salerno are somewhat inapt in that these gun control laws represent ax ante deprivations of liberty without any showing of harm.

The Court distinguishes the “substantial burden” rest from strict scrutiny, noting that it “will not produce nearly as many difficult empirical questions as strict scrutiny.”

By contrast, the substantial burden test, though hardly mechanical, will not produce nearly as many difficult empirical questions as strict scrutiny. See Volokh, supra, at 1459-60 (arguing that it is easier to determine whether a law substantially burdens the right to bear arms than to figure out whether a law “will reduce the danger of gun crime”). Indeed, courts make similar determinations in other constitutional contexts. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (holding that pre-viability abortion regulations are unconstitutional if they impose an “undue burden” on a women’s right to terminate her pregnancy); Clark v. Cmty. For Creative Non-Violence, 468 U.S. 288, 293 (1984) (stating that content-neutral speech regulations are unconstitutional if they do not “leave open ample alternative channels for communication”). Courts can use the doctrines generated in these related contexts for guidance in determining whether a guncontrol regulation is impermissibly burdensome, as we suggest

I concur, and argued that the Court’s show look elsewhere, and not just to First Amendment contexts, to shape our Second Amendment jurisprudence. Courts make tough “determinations in other constitutional contexts.” The Bill of Rights should be viewed as a whole.

In sum, the Court found that a “substantial burden” test applies, but declined to find what would substantially burden Second Amendment rights.

Accordingly, we hold that only regulations which substantially burden the right to keep and to bear arms trigger heightened scrutiny under the Second Amendment.9

FN9- 9We need not decide today precisely what type of heightened scrutiny applies to laws that substantially burden Second Amendment rights

Here is how the Court phrases the question:

Thus, the proper inquiry is whether a ban on gun shows at the county fairgrounds substantially burdens the right to keep and to bear arms; not whether a county can ban all people from carrying firearms on all of its property for any purpose.

The Court first looks to see if the state “leaves open sufficient alternative avenues for obtaining the good or service,” comparing it to an analysis of restriction on the time, place, or manner of protected speech will ask whether the restriction “leave[s] open ample alternative channels for communication of the information.”” Ward, 491 U.S. at 791.The Court also looks to abortion jurisprudence:

Likewise, the Supreme Court recently held that a ban on one particular method of performing an abortion did not constitute an “undue burden” on the right to an abortion in part because “[a]lternatives [were] available to the prohibited procedure.” Carhart, 550 U.S. at 164; see also id. at 165 (“[T]he Act allows . . . a commonly used and generally accepted [abortion] method, so it does not construct a substantial obstacle to the abortion right.”).

Phrased in terms of the Second Amendment:

Following this lead, when deciding whether a restriction on gun sales substantially burdens Second Amendment rights, we should ask whether the restriction leaves lawabiding citizens with reasonable alternative means for obtaining firearms sufficient for self-defense purposes.

In light of the fact that the original Nordyke complaint was filed in 2004, before our entire Second Amendment jurisprudence was created, plaintiffs will have the opportunity to amend.

O’Scannlain addresses Judge Gould’s dissent:

Judge Gould respectfully disagrees with the substantial burden framework that we adopt today. Instead, he would “subject to heightened scrutiny only arms regulations falling within the core purposes of the Second Amendment.” Concur. at 5659. All other gun-control regulations would trigger only “reasonableness review.” Id. Depending on how one reads Judge Gould’s framework, we suggest that it is either equivalent to the approach we adopt today, or inconsistent with the Supreme Court’s decisions in Heller and McDonald.

This is similar to the approach Breyer proposed, and mirrors the scholarship of Joseph Blocher.

O’Scannlain makes an important point, one that I have stressed throughout—the distance between the majority and dissenting opinions can be blurred quite easily.

On one reading, Judge Gould’s approach is roughly the same as our own. After all, it is not initially clear how determining whether a regulation “substantially burdens the right to keep and to bear arms” is different from determining whether the regulation “fall[s] within the core purposes of the Second Amendment.” Both approaches would require a court to determine the extent to which a regulation interferes with the right to keep and to bear arms, and both would apply heightened scrutiny only to regulations whose interference with the right reaches a certain threshold.

The Court notes that “almost every gun-control regulation—even those amounting to de facto gun bans—is rationally related to the government’s legitimate interest in reducing gun crime.”

O’Scannlain, in a footnote, cites to Easterbrook’s language about the “presumptively lawful” dicta:

Judge Gould focuses on the footnote’s reference to “presumptively lawful regulations,” reading it to mean “regulations that will command only rationality review.” Concur. at 5661. We believe it most unlikely that, in a one-sentence footnote, the Supreme Court would undermine the rest of
its analysis by declaring, inter alia, that all gun sales regulations, no matter how burdensome, should receive the rubber stamp of rational basis review. Instead, we read “presumptively lawful regulations” to mean “regulations which we presume will survive constitutional scrutiny,” and to say nothing about what standard of review should be applied to them. This reading fits with the context in which the remark was made: cautioning readers against overreading the opinion. As Judge Easterbrook put it, this section of Heller is merely “precautionary language” that “warns readers not to treat Heller as containing broader holdings than the Court set out to establish.” United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010).

Props to Adam Winkler on a number of citations, though I question the continued vitality of these references to pre-Heller reasonableness inquiries:

Justice Alito reiterated in McDonald that the states would be permitted to “‘experiment[]with reasonable firearms regulations under the Second Amendment.’”355 Adam Winkler’s learned article ____, written two years before Heller, has been cited in both Heller and McDonald by the dissenting Justices to identify the manner in which the states have regulated firearms. These precedents are relevant for historical purposes, perhaps, but to the extent that they conflict with the core holding of Heller, and they recognize an individual right to keep and bear arms, I question their sustained validity. For example, if a state viewed the right to keep and bear arms as a collective right, and premised its “reasonable” regulations on that notion, then those regulations, even if longstanding, are unconstitutional. Why should they receive extra
protection solely because of their early vintage?
If “reasonable firearms regulations” are those that comply with the Court’s recognition of the Second Amendment in Heller and McDonald as an individual right, then I have no objection. But if these regulations are “reasonable” because they are “longstanding”—that is, they are constitutional merely because they predated the Court’s recognition of the Second Amendment
as an individual right, then Alito’s opinion seeks to protect potentially-unconstitutional laws simply because they are old, and people have grown to rely on them.