This is what Judge Kavanaugh argues in Heller v. D.C. (2011) (opinion here, analysis here and here).
It bears emphasis that Heller, while enormously significant jurisprudentially, was not revolutionary in terms of its immediate real-world effects on American gun regulation. Indeed, Heller largely preserved the status quo of gun regulation in the United States. Heller established that traditional and common gun laws in the United States remain constitutionally permissible. The Supreme Court simply pushed back against an outlier local law – D.C.’s handgun ban – that went far beyond the traditional line of gun regulation. As Heller emphasized: “Few laws in the history of our Nation have come close to the severe restriction of the District’s” law. 554 U.S. at 629.3
3 In that sense, Heller was similar in its overarching practical and real-world ramifications to recent Supreme Court decisions such as Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729 (2011); Graham v. Florida, 130 S. Ct. 2011 (2010); Kennedy v. Louisiana, 554 U.S. 407 (2008); and Romer v. Evans, 517 U.S. 620 (1996). Those decisions disapproved novel or uncommon state legislative efforts to regulate beyond traditional boundaries in areas that affected enumerated individual constitutional rights – California’s law banning sale of violent video games, Florida’s law permitting life without parole for certain juvenile crimes, Louisiana’s law permitting the death penalty for certain rapes, and Colorado’s law prohibiting gay people from receiving protection from discrimination. Because those laws were outliers, the decisions invalidating them did not cause major repercussions throughout the Nation. Heller was a decision in that same vein, in terms of its immediate practical effects in the United States. By contrast, of course, some Supreme Court decisions interpreting the Constitution’s individual rights provisions not only are significant jurisprudentially but also have substantial practical impacts on common federal or state practices. See, e.g., Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009); Arizona v. Gant, 556 U.S. 332 (2009); United States v. Booker, 543 U.S. 220 (2005). Heller was not a decision of that kind.
So Heller, Brown v. EMA, Graham v. Florida, Kennedy v. Louisiana, and Romer were “outliers.” (Some law clerks are reading Malcolm Gladwell!) Other opinions have “substantial practical impact” on the law, such as Melendez-Diaz, Arizona v. Gant, and Booker.
So what’s the difference between an outlier and a practical case? Well, for one all the practical cases seem to relate to criminal procedure rights, while the outliers affect individual liberty cases, such as guns and the 14th Amendment.
Dare I say another distinction related to social cost? In the cases that Kavanaugh identifies as having a practical impact, the more palpable cost are the liberty costs–the costs to society from the exercise of individual liberty. The outlier cases are those with more palpable safety costs- the costs to individuals from the protection of collective safety.
Doug Berman has more:
As a descriptive matter, Judge Kavanaugh is spot on in noting that many of the most high-profile modernSCOTUS constitutional rulings involved invalidation of a “novel or uncommon” and “outlier” piece of state legislation, while a few others upset more common criminal justice practices. (Thus, the first answer to the Sesame Street question posed above is Booker, which Judge Kavanaugh rights asserts was more disruptive of traditional and common practices than Heller or Graham or Kennedy.) Critically, though, Judge Kavanaugh goes on to develop a jurisdictional approach to the Second Amendment based in the idea that the novelty or outlier status of any gun regulation makes it constitutionally suspect. I am tempted to call this a Sesame Street approach to the Second Amendment: if a particular jurisdiction’s gun regulation is not like a lot of others, then it is (presumptively?) unconstitutional.
This may be why I opened up The Constitutionality of Social Cost with the phrase “Why is this right different from all other rights?”
Of course, it make plenty of textual sense to assert that a novel or uncommon punishment is constitutionally suspect given the Eighth Amendment’s prohibition on “cruel and unusual punishments.” But it is hard to see just where and how a presumption against novel gun regulation finds expression in the text of the Second Amendment’s prohibition on infringements of the right to keep and bear arms. Moreover, there is a competing constitutional tradition (based in federalism and the decentralization of power) to praise and protect efforts by individual states to try a unique approach to regulation in order to foster a laboratory for legislative innovation.