Nelson Lund is a big fan of Judge Sykes’s opinion in Ezell. Here is the abstract for his new article, Second Amendment Standards of Review in a Heller World:
In District of Columbia v. Heller, the Supreme Court recognized the Second Amendment right of individuals to keep and bear arms, and struck down a ban on civilian possession of handguns. The lower courts have since confronted numerous challenges to less restrictive regulations, many of which have required judges to conjure guidance from the highly enigmatic Heller opinion.
Surprisingly, perhaps, the federal courts of appeals have quickly reached a consensus about the proper analytical framework to apply. That framework draws heavily on a tiers-of-scrutiny approach borrowed largely from the Supreme Court’s First Amendment jurisprudence. In a recent case from the D.C. Circuit, Judge Brett Kavanaugh’s dissenting opinion mounted a fundamental challenge to this framework. Judge Kavanaugh argues that the consensus framework was rejected in Heller, and that courts have been instructed to use a different approach based on American history and tradition.
This article maintains that Heller did not dictate the approach proposed in Judge Kavanaugh’s dissent, and that his approach is unworkable. The consensus approach taken by the D.C. Circuit is preferable to Kavanaugh’s, but it was misapplied by the majority. The best approach is exemplified in a Seventh Circuit opinion written by Judge Diane Sykes, who provided an unusually intelligent interpretation of Heller and displayed an appropriate respect for the constitutional right at stake in Second Amendment litigation.
Is a Heller world anything like a Barbie world?
And on the comparison between Kavanaugh’s dissenting opinion in Heller II v. Sykes’s approach in Ezell:
First, whereas Heller II adopted a view reflecting a somewhat loose consensus of other circuit courts, Judge Sykes relied almost entirely on Heller, McDonald, and other Supreme Court decisions, and she exhibited a detailed and thoughtful familiarity with those opinions. It is true that Heller and McDonald can be read differently, as Judge Kavanaugh showed in Heller II, but Judge Sykes’ analysis of them has better support in the text of the opinions. Because subordinate courts are required to follow the Supreme Court, but not to follow the lead of other circuits, it is generally a better practice to focus on what the Supreme Court itself has said — to look, so to speak, for the Court’s “original meaning” — than to play a kind of telephone game by interpreting Supreme Court opinions on the assumption that some other courts read them correctly.
Second, and this is more important, Judge Sykes took the importance of the Second Amendment as a constitutional right more seriously than the Heller II majority. Whereas Heller II casually applied intermediate scrutiny in a way that too often accepted flimsy justifications for the regulations, Judge Sykes insisted on the kind of rigor that courts routinely demand in First Amendment cases. Unlike the Heller II majority, she gave appropriate attention to the fundamental principle, expressly adopted by the Supreme Court, that the Second Amendment should not “be singled out for special — and specially unfavorable treatment.”51
Update: Nelson posted a piece in Engage comparing the approaches of Sykes, Kavanaugh, and Ginsburg.