The opinion in NRA v. BAFTE is here. The 5th Circuit had considered a number of Second Amendment challenges since Heller, but has not “not established a Second Amendment framework.” They do so here, adopting tests from Chester, Ezell, Marzzarella, and Reeese, and rejecting Judge Sykes’s test from Skoien. [Update: Anthony in the comment corrects me. Judge Sykes wrote Ezell, which adopted the two-step approach, while the en banc opinion in Skoien rejected Judge Sykes’s approach.]
A twostep inquiry has emerged as the prevailing approach: the first step is to determine whether the challenged law impinges upon a right protected by the Second Amendment—that is, whether the law regulates conduct that falls within the scope of the Second Amendment’s guarantee; the second step is to determine whether to apply intermediate or strict scrutiny to the law, and then to determine whether the law survives the proper level of scrutiny. See United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C. Cir. 2011) (Heller II); Ezell v. City of Chicago, 651 F.3d 684, 701–04 (7th Cir. 2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States v. Reese, 627 F.3d 792, 800–01 (10th Cir. 2010) United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010). But see United States v. Skoien, 614 F.3d 638, 641–42 (7th Cir. 2011) (en banc) (eschewing the two-step framework and resisting the “levels of scrutiny quagmire,” but applying intermediate scrutiny to a categorical restriction). We adopt a version of this two-step approach and sketch a skeleton of the framework here, leaving future cases to put meat on the bones.
Earlier this year, Judge Elrod wrote separately to agree with Judge Kavanaugh that Heller precludes the application of tiers of scrutiny, though the 5th Circuit did not adopt that position.
With respect to scrutiny, the court recognized that either intermediate or strict scrutiny applies:
We agree with the prevailing view that the appropriate level of scrutiny “depends on the nature of the conduct being regulated and the degree to which the challenged law burdens the right.” . . . A regulation that threatens a right at the core of the Second Amendment—for example, the right of a law-abiding, responsible adult to possess and use a handgun to defend his or her home and family, see Heller, 554 U.S. at 635—triggers strict scrutiny. See Heller II, 670 F.3d at 1257; Masciandaro, 638 F.3d at 470; Chester, 628 F.3d at 682. A less severe regulation—a regulation that does not encroach on the core of the Second Amendment—requires a less demandingmeans-ends showing. See Heller II, 670 F.3d at 1257; Masciandaro, 638 F.3d at 470; Chester, 628 F.3d at 682. This more lenient level of scrutiny could be called “intermediate” scrutiny, but regardless of the label, this level requires the government to demonstrate a “reasonable fit” between the challenged regulation and an “important” government objective.
The court also addressed one of the curious tensions within the “longstanding prohibitions” dicta from Heller:
We admit that it is difficult to map Heller’s “longstanding,” id. at 626, “presumptively lawful regulatory measures,” id. at 627 n.26, onto this two-step framework. It is difficult to discern whether “longstanding prohibitions on the possession of firearms by felons and the mentally ill, . . . or laws imposing conditions and qualifications on the commercial sale of arms,” id. at 626–27, by virtue of their presumptive validity, either (i) presumptively fail to burden conduct protected by the Second Amendment, or (ii) presumptively trigger and pass constitutional muster under a lenient level of scrutiny. See, e.g., Marzzarella, 614 F.3d at 91 (recognizing that the designation—longstanding, presumptively lawful measure—is ambiguous). For now, we state that a longstanding, presumptively lawful regulatory measure—whether or not it is specified on Heller’s illustrative list—would likely fall outside the ambit of the Second Amendment; that is, such a measure would likely be upheld at step one of our framework.
The court also explicitly rejects the type of interest-balancing approach Justice Breyer proffered, though frankly, the differences between means-ends fit and interest balancing has always eluded me. But, unlike Judge Kavanaugh’s opinion in Heller II, the 5th Circuit did not reject all forms of scrutiny.
The Court’s use of the word “rather” demonstrates that, in the Court’s view, the familiar scrutiny tests are not equivalent to interest balancing. In rejecting Justice Breyer’s proposed interest-balancing inquiry, we understand the Court to have distinguished that inquiry from the traditional levels of scrutiny; we do not understand the Court to have rejected all heightened scrutiny analysis. But see Heller II, 670 F.3d at 1277–78 (Kavanaugh, J. , dissenting) (arguing that the Heller Court’s rejection of Justice Breyer’s interest-balancing inquiry amounted to a rejection of all balancing tests) At the very least, the Court did not expressly foreclose intermediate or strict scrutiny, but instead left us room to maneuver in crafting a framework.
The analysis of the historical data is very heavy in citations to Saul Cornell’s work, as well as Adam Winkler, though Don Kates and Clayton Cramer get shot-outs.
In the end, the court finds that:
We have summarized considerable evidence that burdening the conduct at issue—the ability of 18-to-20-year-olds to purchase handguns from FFLs—is consistent with a longstanding, historical tradition, which suggests that the conduct at issue falls outside the Second Amendment’s protection. At a high level of generality, the present ban is consistent with a longstanding tradition of targeting select groups’ ability to access and to use arms for the sake of public safety. See Winkler, Gunfight, at 116; Cornell & DeDino, 73 Fordham L. Rev. at 507–08
Next, the court made an interesting concession–that they can’t know precisely what the Framers thought about the Second Amendment, and perfect historical research is impossible.
To be sure, we are unable to divine the Founders’ specific views on whether 18-to-20-year-olds had a stronger claim than 17-year-olds to the Second Amendment guarantee. The Founders may not even have shared a collective view on such a subtle and fine-grained distinction. The important point is that there is considerable historical evidence of age- and safety-based restrictions on the ability to access arms. Modern restrictions on the ability of persons under 21 to purchase handguns—and the ability of persons under 18 to possess handguns—seem, to us, to be firmly historically rooted. Nonetheless, we face institutional challenges in conducting a definitive review of the relevant historical record.
This discussion highlights a divide between original intent originalism and original public meaning originalism. The former seeks the views of specific founders, while the latter looks more broadly to what terms meant. Scalia’s opinion sounded in the latter, while Stevens’s dissent sounded in the former. Looking to the practices of the foundation generation, and what they are comfortable with, is what I have called elsewhere “Retrospective Originalism,” is another approach to originalism (see here and here)
As I noted in my piece in the Texas Law Review, the Supreme Court’s New Battlefield:
Second, the history of early gun laws can be used as evidence of what the framers of the Second Amendment were comfortable with. That is, examples of the founding generation placing limitations on the right to keep and bear arms suggest that this is how the Second Amendment was meant to operate. Or, opposition to such laws indicates that those laws were not compatible with the Second Amendment. In other words, if it was good enough for James Madison, it is good enough for us! I call this approach “retrospective originalism.”
This method must be distinguished from the original-expected-application blend of originalism, which looks to how the framers would expect the Constitution to be applied to modern issues—such as how the Fourth Amendment would apply to a device that can measure heat signatures inside a home. Retrospective originalism, in contrast, uses the practices of the Founding era as evidence of how the provisions were intended to operate back then. For example, [Adam] Winkler cites to many of the laws passed in the Colonial era aimed at promoting gun safety as evidence that the Framers were comfortable with strict gun control laws. These ordinances—many of which were cited in Justice Breyer’s dissent in Heller—are illustrations that “gun possession . . . balanced with gun safety laws was [an idea] that the founders endorsed.”
The court’s confused conclusion combines (ok, enough alliteration!) several different interwoven strands of originalism, without explaining the distinctions. Though I give credit to the court for even acknowledging the difficult nature of the historical inquiry, rather than perfunctorily glossing over it.
Ultimately, intermediate scrutiny is applied, and the statute survives:
Unquestionably, the challenged federal laws trigger nothing more than “intermediate” scrutiny. We have demonstrated that this federal scheme is not a salient outlier in the historical landscape of gun control. And unlike the D.C. ban in Heller, this ban does not disarm an entire community, but instead prohibits commercial handgun sales to 18-to-20-year-olds—a discrete category. The narrow ambit of the ban’s target militates against strict scrutiny
First, these federal laws do not severely burden the Second Amendment rights of 18-to-20-year-olds because they impose an age qualification on commercial firearm sales: FFLs may not sell handguns to persons under the age of 21 . . . Second, these laws do not strike the core of the Second Amendment because they do not prevent 18-to-20-year-olds from possessing and using handguns “in defense of hearth and home.” . . . Third, these laws demand only an “intermediate” level of scrutiny because they regulate commercial sales through an age qualification with temporary effect. Any 18-to-20-year-old subject to the ban will soon grow up and out of its reach.
The court provides a lengthy discourse on the dangers of guns, analyzing their social costs.
The court finally denies an equal-protection claim, ruling that age only triggers rational basis review.
I wonder if Akhil Amar’s broad reading of the 26th Amendment–all classifications of people between the ages of 18 and 20 are now unconstitutional–would render this law invalid?
H/T Eugene Volokh