In a dissent in Houston v. City of New Orleans (which involved whether New Orleans could be held liable for failing to return a firearm after dropping charges), Judge Elrod dissents, and rejects the application of intermediate or strict scrutiny as applied to the Second Amendment–a position that Judge Kavanaugh took in D.C. v. Heller II.
Given my conclusion that Houston’s claim implicates the Second
Amendment, I must reach the question of what test courts should apply in
evaluating Second Amendment claims, an open question in this circuit. In
applying Heller and McDonald, most of our sister circuits have adopted a twostep
approach to Second Amendment claims, step one of which is to determine
whether the regulated activity falls within the scope of the Amendment—an
exclusively textual and historical inquiry—and step two of which is to apply
some level of heightened scrutiny (strict or intermediate) to regulations of
Second Amendment-protected activity. Recently, however, Judge Kavanaugh
of the D.C. Circuit has articulated an alternative approach, which dispenses
with step two on the ground that Heller and McDonald rule out scrutiny
analysis. In my view, unless and until the Supreme Court says differently,
Judge Kavanaugh is correct that “Heller and McDonald leave little doubt that
courts are to assess gun bans and regulations based on text, history, and
tradition, not by a balancing test such as strict or intermediate scrutiny.” Heller v. Dist. of Colum., — F.3d —, 2011 WL 4551558, at *23 (D.C. Cir. Oct. 4, 2011) (Kavanaugh, J., dissenting). The parties have not addressed whether the district attorney’s policy is sufficiently rooted in the Second Amendment’s text, history, and tradition. I would remand for the district court to consider that question in the first instance.