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In her column, Linda Greenhouse is intrigued that a federal district judge analogized the right to guns to the right to abortion.

Just suppose, Judge Thompson wrote, that the justices were to recognize an individual right to keep a gun at home for self-defense. (As of course the court did, six years ago in the Second Amendment case, District of Columbia v. Heller.) Then suppose that sellers of firearms and ammunition were regulated by the state to such an extent that there were only two vendors left. “The defenders of this law would be called upon to do a heck of a lot of explaining,” Judge Thompson said, adding, “and rightly so in the face of an effect so severe.”

Guns and abortion? That’s a pairing no previous judicial opinion has made. “At its core, each protected right is held by the individual,” the judge explained. “However, neither right can be fully exercised without the assistance of someone else. The right to abortion cannot be exercised without a medical professional, and the right to keep and bear arms means little if there is no one from whom to acquire the handgun or ammunition.”

Perhaps no judge has made this point before. But I did.

In my article on 3D Printed Guns, I reason from the Court’s abortions precedents to explain why the right to bear arms must be coupled with the right to buy and sell guns. You can’t exercise the 2nd Amendment right to keep and bear arms alone.

In Planned Parenthood v. Danforth, physicians at Planned Parenthood had standing to challenge abortion regulations. It was not asserted that there was a constitutional right to provide abortions, but rather that restricting the ability to provide them infringes on the core constitutional right to terminate a pregnancy. In this sense an individual right is coupled with a constitutional guarantee of the provider of the right. The right to abortion would be meaningless if doctors were prohibited from providing them. In American Booksellers Association v. Hudnut, book sellers had standing to challenge a law that criminalized the sale of “pornography.” There is no constitutional right to sell books (outside of the liberty of contract), though censorship of “pornography” restricts the First Amendment’s guarantee of free speech of those selling books. In a similar fashion, the Court has construed a freedom of association from the First Amendment rights of freedom of speech, assembly, and other constitutional guarantees.

As a matter of first principles, the primary mechanism that allows people to keep and bear arms is the threshold ability to acquire it from someone else. Acquiring a gun entails two separate rights—the rights of the buyer (protected in Heller) and the rights of the seller (implied in Heller). A constitutional right to bear arms, without a complementary right to acquire (buy and sell) arms, would be meaningless. If the former is protected, and the latter is banned—the Second Amendment would cease to even be a “parchment barrier.”

Interestingly enough, the DOJ has taken the position that the Second Amendment does not, in the least protect the ability to buy or sell guns. Only to bear guns. Where you obtain those guns from, is not the government’s concerns. Eventually, the courts will have to address this issue.

And for what its worth, the City of Chicago tried to shut down all firing ranges in city limits–a bizarre requirement because one needed firearm training to obtain a license. This is exactly the type of horrible scenario Greenhouse envisioned if a state banned all gun stores. In Ezell v. City of Chicago, the 7th Circuit found these regulations unconstitutional. Judge Sykes’s opinion for the court declined to adopt Planned Parenthood’s “undue burden test,” but instead adopted the inquiry from the First Amendment context:

The district court specifically decided against an intermediate standard of scrutiny but did not settle on any other, then sided with the City “even if” intermediate scrutiny applied. A choice must be made. The City urges us to import the “undue burden” test from the Court’s abortion cases, see, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 876-79, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), but we decline the invitation. Both Heller and McDonald suggest that First Amendment analogues are more appropriate, see Heller, 554 U.S. at 582, 595, 635, 128 S.Ct. 2783; McDonald, 130 S.Ct. at 3045, and on the strength of that suggestion, we and other circuits have already begun to adapt First Amendment doctrine to the Second 707*707 Amendment context, see Skoien, 614 F.3d at 641; id. at 649 (Sykes, J., dissenting); Chester, 628 F.3d at 682; Marzzarella, 614 F.3d at 89 n. 4; see also Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense, 56 UCLA L.REV. at 1449, 1452, 1454-55; Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L.REV. at 1376; Winkler, Heller’s Catch-22, 56 UCLA L.REV. at 1572.

Therein lies a key difference from the 2nd Amendment, and the right to abortion, that may explain the court’s analysis. The former is enumerated. The latter is not.

Update: My colleague Prof. Mike O’Shea points out that in Nordyke v. King, Judge O’Scannlain for the 9th Circuit directly linked abortion and gun rights  (on pp. 30-32).

The Nordykes counter that the Ordinance indirectly bur- dens effective, armed self-defense because it makes it more difficult to purchase guns. They point to case law on the right to sexual privacy as an analog. In Carey v. Population Ser- vices International, 431 U.S. 678 (1977), for instance, the Supreme Court measured state regulations limiting access to contraceptives by the same yardstick as they would a total ban on contraceptives. See id. at 688. Just as the Court held that “[l]imiting the distribution of nonprescription contraceptives to licensed pharmacists clearly imposes a significant burden on the right of the individuals to use contraceptives,” id. at 689, so the Nordykes argue that limiting the availability of firearms burdens their right to keep and bear arms for the pur- pose of self-defense.20

But “not every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 873 (1992) (joint opinion of O’Connor, Kennedy & Souter, JJ.). Indeed, “[n]umerous forms of state regulation might have the inciden- tal effect of increasing the cost or decreasing the availability of medical care . . . for abortion,” for instance. Id. at 874. Even though the Supreme Court has recognized a right to an abortion, it has approved some of those regulations.

The Court has also held that the government need not fund abortions, even though women have a substantive due process right to obtain them. See Harris v. McRae, 448 U.S. 297, 315- 16 (1980). In Harris, the Court drew a crucial distinction between government interference with activity the Constitu- tion protects and the government’s decision not to encourage, to facilitate, or to partake in such activity. “Although the lib- erty protected by the Due Process Clause affords protection against unwarranted government interference with freedom of choice in the context of certain personal decisions,” Harris declared, “it does not confer an entitlement to such funds as may be necessary to realize all the advantages of that free- dom.” Id. at 317-18.21 If we apply these principles here, we conclude that although the Second Amendment, applied through the Due Process Clause, protects a right to keep and bear arms for individual self-defense, it does not contain an entitlement to bring guns onto government property

I have long argued that there are many flavors of the rational basis test, and not just the conventional rational basis test, and the so-called rational basis plus test applied in Cleburne, Romer, and Moreno. More broadly, the entire notion of tiers of scrutiny is only one of nomenclature. At heart, what constitutional review considers is who bears the burdens. For what the Court has called fundamental rights, or strict scrutiny, the government bears a very strong burden. In  Fisher, and in particular in Justice Thomas’s concurring opinion, we saw how seriously the Court takes that burden. The Court will not simply defer to the pleadings of the government, but instead will force the government to satisfy the court that “no workable race-neutral alternatives would produce the educational benefits of diversity.”

On the other end of the spectrum, with what we usually call rational basis review, the individual plaintiff bears a burden to show that the law is unconstitutional. This burden glides along a very steep sliding scale, where at times under Lee Optical-style rational basis review, the plaintiff has an impossible (and indeed fictitious) burden to disprove any conceivable reason why the law is constitutional (including reasons the Court can make up after the fact), to what we previously called rational-basis plus (where the Court performs a more searching inquiry). This is the traditional story that we all learned in law school. I discuss these posts at length here.

However, over the last twenty years of the Court’s jurisprudence–in cases like Heller, Kelo, Romer, Lawrence, and others–reflects what I think is a abandonment, or at least, walking away from trying to define or adhere to tiers of scrutiny, and specifically explaining what rational basis review is. After reading Windsor today, I think the Court, led by Justice Kennedy, has ventured further down that path. Rather than thinking in terms of government interests or tailoring, these opinions show that the main focus is assigning different levels of burdens to the plaintiff, or the state. Within the different zones of rational basis scrutiny, we see  attempts to shift and weight the burdens of persuasion, depending on the nature of the right. And it is not just rational basis, and rational basis plus.

Reconceptualizing scrutiny in terms of who bears the burden, and how strong the burden is, offers a better description of what it is that the Court has been doing for two+ decades when they avoid talking about scrutiny, and more importantly, helps to reconcile the court’s meandering from tiers of scrutiny.

Heller

One of the lingering questions following Heller is what is the appropriate standard of review for cases brought under the Second Amendment. The Court decidedly did not answer this question of what standard of review applies. Justice Scalia wrote:

Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,²⁷banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.

Justice Breyer correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. Post, at 8. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553 U. S. ___, ___ (2008) (slip op., at 9–10). In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U. S. 144 , n. 4 (1938) (“There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments…”). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.

It was clear from Heller that a mere rational basis would not suffice, but what does that really tell us? Does it tell us that intermediate scrutiny applies (as most courts of appeals have held)? Or does it tell us that the government cannot overcome this right with *only* a rational basis. This, I think, is the broader import of Scalia’s footnote (a point he escapes from in Windsor). The government needs more of a reason to take away a person’s rights. General public safety rationales won’t cut it. In other words, the government bears some greater burden to show that the infringement of this right is constitutional. Many suspect that this language was added to gather the vote of Justice Kennedy. That would be keeping with this line of jurisprudence.

And this is how, some Circuits have construed this right. For example, here is the 7th Circuit standard as discussed in a recent N.D.Ill opinion,

Nonetheless, the Seventh Circuit explained that “the government does not get a free pass”; “it still must prove that the ban is constitutional, a mandate that flows from Heller itself”; and “putting the government through its paces in proving the constitutionality of § 922(g)(1) is only proper.” The Seventh Circuit ultimately applied a form of intermediate scrutiny and upheld § 922(g)(1).

I like the image of putting “putting the government through its paces.” The burden is not insurmountable. It is merely there. Though not all courts have been uniform in applying this burden (even within the 7th Circuit).

Further, the en banc opinion by Chief Judge Easterbrook in Skoien was overly deferential to the government’s interest, and took great pains to marshall evidence outside the record to make the case for the government. In dissent, Judge Sykes noted “This approach fell far short of the legal heavy lifting normally required to justify criminally punishing the exercise of an enumerated constitutional right.”

In an earlier work, I argued that the burdens should only rest with the government if the individual applicant’s social cost warrants it.

Second Amendment chal‐ lenges should be bifurcated based on the social costs involved and the actor’s propensity for violence. For the deprivation of the liberty of persons lacking a propensity for violence, the burden of persuasion should remain with the state, and stricter judicial scrutiny is warranted. For those who have demon‐ strated a propensity for violence and who are likely to inflict harm in the future, such as violent felons, the burden should rest with the individual, and less exacting judicial scrutiny is appro‐ priate. Under such an approach, which fits snugly inside Heller’s rubric, the Second Amendment can develop and assume its equal station among our most cherished constitutional rights.

The Court did nothing in McDonald to clarify this issue, as Justice Stevens noted in his dissent: “standard of review we have not even established.”

So here we have a major Supreme Court case, that fails to identify exact forms of scrutiny, but requires the government to assume a greater burden to justify an infringement of the right.

Kelo

The trend towards thinking about judicial scrutiny in terms of burden is not limited to 2nd Amendment, or Equal Protection cases, but is also evident in property rights challenges, most prominent in Kelo v. City of New London. When teaching this case last term, something jumped out from Justice Kennedy’s pivotal concurring opinion. First, he recites without approval the overly deferential rational-basis-esque tests from Midkiff and Berman, and analogizes them to Beach and Lee Optical:

This Court has declared that a taking should be upheld as consistent with the Public Use Clause, U.S. Const., Amdt. 5., as long as it is “rationally related to a conceivable public purpose.”Hawaii Housing Authority v. Midkiff,467 U.S. 229, 241 (1984); see also Berman v. Parker,348 U.S. 26 (1954). This deferential standard of review echoes the rational-basis test used to review economic regulation under the Due Process and Equal Protection Clauses, see, e.g., FCC v. Beach Communications, Inc.,508 U.S. 307, 313—314 (1993); Williamson v. Lee Optical of Okla., Inc.,348 U.S. 483 (1955). (emphasis my own).

Broadly speaking, Kennedy says that under the Court’s preferred approach, like in Lee Optical, the Court will not second-guess the determinations of the legislature. If the ends are constitutional, the means will not be judged. (Who cares if the obvious purpose of the “comprehensive plan” was to give it to Pfizer.) As long as a non-stupid-staffer was willing to prepare a report suggesting that the land would benefit the community, that is enough. But Kennedy did not join that approach in full. He wrote separately to stress that if there was evidence of shenanigans–even if the government had some rational basis on which to support the law–he would find a taking. The government has this burden to rebut.

The determination that a rational-basis standard of review is appropriate does not, however, alter the fact that transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause.

And what cases does AMK cite for this proposition? Our favorite cases that place a burden on the government, while purporting to apply rational basis plus review.

  A court applying rational-basis review under the Public Use Clause should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits, just as a court applying rational-basis review under the Equal Protection Clause must strike down a government classification that is clearly intended to injure a particular class of private parties, with only incidental or pretextual public justifications. See Cleburne v. Cleburne Living Center, Inc.,473 U.S. 432, 446—447, 450 (1985); Department of Agriculture v. Moreno,413 U.S. 528, 533—536 (1973).

Here, a different type of rational basis review, as exemplified by Cleburne and Moreno (and I would add Romer), in which the court must look under the hood, and not take the government’s word for it. Another case where Justice Kennedy is ambivalent about the type of scrutiny, but specifies that in certain cases, the government bears a higher burden to show that it did not possess an improper motive.

Lawrence v. Texas

In Lawrence, Justice Kennedy famously declined to set a standard of review, speaking instead broader in terms of dignity and liberty interests. As Justice Scalia wrote in his dissent:

Though there is discussion of “fundamental proposition[s],”ante, at 4, and “fundamental decisions,” ibid. nowhere does the Court’s opinion declare that homosexual sodomy is a “fundamental right” under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a “fundamental right.”

Scalia also takes note of Justice O’Connor’s approach to apply a “more searching form of rational basis review.”

   Justice O’Connor simply decrees application of “a more searching form of rational basis review” to the Texas statute.Ante, at 2. The cases she cites do not recognize such a standard, and reach their conclusions only after finding, as required by conventional rational-basis analysis, that no conceivable legitimate state interest supports the classification at issue. See Romer v.Evans, 517 U.S., at 635; Cleburne v. Cleburne Living Center, Inc.,473 U.S. 432, 448—450 (1985); Department of Agriculture v.Moreno, 413 U.S. 528, 534—538 (1973). Nor does Justice O’Connor explain precisely what her “more searching form” of rational-basis review consists of. It must at least mean, however, that laws exhibiting “ ‘a … desire to harm a politically unpopular group,’ ”ante, at 2, are invalid even though there may be a conceivable rational basis to support them.

Scalia speaks of Cleburne and Moreno as “conventional rational-basis analysis.” Both Kennedy, and O’Connor’s versions of scrutiny shift the brudens somewhat. Even though there may be some rational basis on which to pass the law, the state now has a burden to disprove improper motives for other grounds to support the law. Are you seeing a trend here about the relationship between burden and scrutiny?

Windsor Oral Argument

This dynamic was on full display in oral arguments in Windsor in a colloquy between Paul Clement and Justice Kagan. Kagan stressed that in 1996, when DOMA was passed, one of the reasons provided by the House for the law was the “moral disapproval of homosexuality.” There were lots of other bases that were probably legitimate, but this one was in there.

JUSTICE KAGAN: Well, is what happened in 1996 — and I’m going to quote from the House Report here — is that “Congress decided to reflect an honor of 11 collective moral judgment and to express moral disapproval of homosexuality.” Is that what happened in 1996?

Clement responded, candidly, that this was never the appropriate standard. In other words, the government (pretend Clement actually represents the government) never bore that burden. If the government had that that burden, Clement conceded that he loses.

MR. CLEMENT: Does the House Report say that? Of course, the House Report says that. And if that’s enough to invalidate the statute, then you should invalidate the statute. But that has never been your approach, especially under rational basis or even rational basis-plus, if that is what you are suggesting. This Court, even when it’s to find more heightened scrutiny, the O’Brien case we cite, it suggests, Look, we are not going to strike down a statute just because a couple of legislators may have had an improper motive. We’re going to look, and under rational basis, we look: Is there any rational basis for the statute? And so, sure, the House Report says somethings that we are not — we’ve never invoked in trying to defend the statute. But the House Report says other things, like Congress was trying to promote democratic self-governance. And in a situation where an unelected State judiciary in Hawaii is on the verge of deciding this highly contentious, highly divisive issue for everybody, for the States — for the other States and for the Federal Government by borrowing principle, it makes sense for Congress.

It’s not enough for the government to show *some* reason why the law is constitutional. It now must assume the burden raised by the challengers.

Justice Breyer’s questioning of Clement reflects this heightened burden for the government:

MR. CLEMENT: Again, I think the right way to analyze it would be, you know, is — is there any distinction drawn that implicates what level of scrutiny is implicated. If the level of scrutiny is a rational basis, then my answer to you would be, yes, they can do that. I mean, we’d have to talk about what the rational basis would be -­

JUSTICE BREYER: No, there isn’t any. I’m trying to think of examples, though I just can’t imagine what it is.

MR. CLEMENT: Well, I — I think the uniform treatment of individuals across State lines -­

JUSTICE BREYER: All right. So you’re saying uniform treatment’s good enough no matter how odd it is, no matter how irrational. There is nothing but uniformity.

Later Clement rejected Justice Breyer’s efforts to place these additional burdens on him:

JUSTICE BREYER: What, in your opinion, is special about this homosexual marriage that would justify this, other than this kind of pure uniformity, if there is such a thing?

In other words, Breyer is heaping burdens on the government beyond the single stated goal of uniformity. Clement didn’t want to go there.

MR. CLEMENT: Well, let me — let me just get on record that — to take issue with one of the premises of this, which is we are at somehow rational basis-plus land, because I would suggest strongly that three levels of scrutiny are enough.

Even Solicitor General Verrilli articulated that DOMA only survives if the Court applies Lee Optical-style rational basis review, in which all the burdens rest with the challengers.

GENERAL VERRILLI: The question in the case, Justice Alito is whether Congress has a sufficiently persuasive justification for the exclusion that it has imposed. And it — and it does not. The only way in which — that BLAG’s arguments for the constitutionality of this statute have any prospect of being upheld is if the Court adopts the minimal rationality standard of Lee Optical.

Under traditional rational basis review, the government can manufacture a justification, or give one that is not persuasive. But here, the justification must be “sufficiently persuasive.” As Damon Root noted, this is a rare instance in which the United States disclaimed federal power.

Verrilli made a similar point during oral argument in the Prop 8 case.

First, every warning flag that warrants exacting scrutiny is present in this case. And Petitioners’ defense of Proposition requires the Court to ignore those warning flags and instead apply highly deferential Lee Optical rational basis review as though Proposition were on a par with the law of treating opticians less favorably than optometrists, when it really is the polar opposite of such a law.

It was noteworthy that Lee Optical is mentioned nowhere in the government’s brief. This line was impromptu. Odd, as Verrilli is usually so careful. At the time I wrote, “So long as Paul Clement has the burden of showing why the law is not irrational, DOMA can’t survive. This is the fallacy of rational basis review. Whoever bears the burden loses.” This was right.

Which brings us to the Windsor opinion, which, other than Kennedy’s fluffy language, kills DOMA because of the good motives (uniformity) are only incidental, and the principal motive is (harming dignity. Just like Kagan and Clement talked about (I continue to be so impressed with Justice Kagan’s skills. Her performance during the ACA oral arguments was masterful).

United States v. Windsor – Kennedy

Keeping with his pattern, Justice Kennedy makes no effort to fit his analysis into any tier of scrutiny. Rather, he describes the nature of analysis the court must apply, and the appropriate burdens the challenger and plaintiff must meet.

First off, is this case about Due Process or Equal Protection? Kennedy’s opinion in Lawrence cited the former, O’Connor’s opinion cited the latter. It seems Windsor cites both.

By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954)

…

The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law. This raises a most serious question under the Constitution’s Fifth Amendment.

…

DOMA writes inequality into the entire United States Code.

…

The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.

Again, it is unclear exactly how it violates the 5th Amendment. In his dissent, Scalia highlights the fact that Lawrence was not an equal protection case, and reminds us that the 5th Amendment lacks an equal protection clause:

The only possible interpretation of this statement is that the Equal Protection Clause, even the Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today’s holding. But the portion of the majority opinion that explains why DOMA is unconstitutional (Part IV) begins by citing Bolling v. Sharpe, 347 U. S. 497 (1954), Department of Agriculture v. Moreno, 413 U. S. 528 (1973), and Romer v. Evans, 517 U. S. 620 (1996)—all of which are equalprotection cases.5 And those three cases are the only authorities that the Court cites in Part IV about the Constitution’s meaning, except for its citation of Lawrence v. Texas, 539 U. S. 558 (2003) (not an equal-protection case) to support its passing assertion that the Constitution protects the “moral and sexual choices” of same-sex couples, ante, at 23.

5 Since the Equal Protection Clause technically applies only against the States, see U. S. Const., Amdt. 14, Bolling and Moreno, dealing with federal action, relied upon “the equal protection component of the Due Process Clause of the Fifth Amendment,” Moreno, 413 U. S., at 533

Kennedy’s explanation of Bolling doesn’t make much sense to me:

The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. See Bolling, 347 U. S., at 499–500; Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 217–218 (1995). While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.

Scalia chides the majority for relying on substantive due process–a doctrine he succumbed to in McDonald to incorporate the Second Amendment.

The majority never utters the dread words “substantive due process,” perhaps sensing the disrepute into which that doctrine has fallen, but that is what those statements mean.

So how does Kennedy justify his opinion? He looks to Moreno for the proposition that a desire to harm people won’t justify discriminating against a group.

The Constitution’s guarantee of equality “must at the very least mean that a bare con- gressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Depart­ ment of Agriculture v. Moreno, 413 U. S. 528, 534–535 (1973). In determining whether a law is motived by an improper animus or purpose, “‘[d]iscriminations of an un- usual character’” especially require careful consideration. Supra, at 19 (quoting Romer, supra, at 633).

What does this mean? The government cannot simply wave their hands, or make up rationales for why a law is valid. They have the burden of showing that legitimate reasons undergirded the law. If the real reason was desire to harm” a group, the burden is not met. This is the essence of the colloquy between Kagan and Clement.

So how will the Court know if this burden is satisfied? Kennedy looks to (what seems to be a new standard of) “careful consideration”:

In determining whether a law is motived by an improper animus or purpose, “‘[d]iscriminations of an un- usual character’” especially require careful consideration. Supra, at 19 (quoting Romer, supra, at 633).

Then, Kennedy abruptly turns to some federalism concerns (which I will address in another point). Later, Kennedy comes back and look at the purposes and effects of the law:

This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.

But what about the rationales behind the law?

The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.

Kennedy looks to the record to see what reasons Congress proffered by the law, citing the House report Kagan mentioned.

The House concluded that DOMA expresses “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially JudeoChristian) morality.” Id., at 16 (footnote deleted). The stated purpose of the law was to promote an “interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.” Ibid. Were there any doubt of this far-reaching purpose, the title of the Act confirms it: The Defense of Marriage.

And AMK is not persuaded by the explanations provided (in other words, it didn’t meet the burden).

The arguments put forward by BLAG are just as candid about the congressional purpose to influence or interfere with state sovereign choices about who may be married. As the title and dynamics of the bill indicate, its purpose is to discourage enactment of state same-sex marriage laws and to restrict the freedom and choice of couples married under those laws if they are enacted.

That’s it. Kennedy doesn’t even engage any of the reasons BLAG offers (as pointed out by Scalia and Alito).  He promptly disregards the reason offered, government uniformity (which he relabels “efficiency”):

DOMA’s principal effect is to identify a subset of statesanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency.

It is not enough that the government has one valid reason, or even a secondary reason why a law is passed. What counts is the “principal purpose” (a phrase he uses a few times, and the Chief mentions in his dissent).

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its mar-riage laws, sought to protect in personhood and dignity.

Again, it is the purpose, and the effects that define the outcome of the case, not (whatever) personhood and dignity (are).

The real reason, with negative motivation, spells the end of DOMA. This reminds me of the mixed motives analysis in employment discrimination law, where, in some cases, having a negative motivation for a law, as well with a legitimate business reason, renders the employment action okay. In other words, if the action was done for a bad reason, but the action *could* have also been made for a legitimate reason, then no liability.

Indeed, while Kennedy looks to the “purpose” of the law, and the “effects,” the thumb is weighted on the side of the effects, with little deference to the purposes offered (only the “principal purpose” matters).

 What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.

AMK placed an insurmountable burden on the government’s position in light of the law’s obvious history (whether this insurmountable burden is appropriate here is an entirely different question–I’m inclined to think it is appropriate). No surprise they didn’t meet it. As Clement said, if this is the government’s burden, and one negative statement will warrant the law’s unconstitutionality, the government will lose.

Here, we have another opinion where Kennedy refuses to identify a tier of scrutiny, and, underneath fluffy language about dignity, finds that the government fails to justify that there is a valid reason for the law. This is crux of the opinion, which all three dissenting Justices aim to rebut. First, Roberts.

Windsor – Roberts

Roberts writes separately, agreeing with Scalia, that the legitimate interests (uniformity of federal law) are enough for the government to meet its burden. Without ignoring the negative material in the House Reports, Roberts would dismiss the mixed motive challenge.

On the merits of the constitutional dispute the Court decides to decide, I also agree with JUSTICE SCALIA that Congress acted constitutionally in passing the Defense of Marriage Act (DOMA). Interests in uniformity and stability am- ply justified Congress’s decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world. Post, at 19–20 (dissenting opinion)

Roberts emphatically rejects that a “more sinister motive” is the “principal purpose” behind the law (or more precisely, is more skeptical about being persuaded that is the primary purpose):

The majority sees a more sinister motive, pointing out that the Federal Government has generally (though not uniformly) deferred to state definitions of marriage in the past . . . . That the Federal Government treated this fundamental question differently than it treated variations over consanguinity or minimum age is hardly surprising— and hardly enough to support a conclusion that the “principal purpose,” ante, at 22, of the 342 Representa- tives and 85 Senators who voted for it, and the President who signed it, was a bare desire to harm. Nor do the snip- pets of legislative history and the banal title of the Act to which the majority points suffice to make such a showing.

Roberts very clearly states that he needs more evidence to find an improper motive–that is, more evidence from the challengers. This suggests that Roberts would place a much smaller burden on the governmetn.

At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.

 

Windsor – Scalia

Justice Scalia attacks AMK’s position for its failure to identify a tier of scrutiny, and echoes the point he made in his Lawrence dissent.

 Moreover, if this is meant to be an equal-protection opinion, it is a confusing one. The opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality. That is the issue that divided the parties and the court below, compare Brief for Respondent Bipartisan Legal Advisory Group of U. S. House of Representatives (merits) 24–28 (no), with Brief for Respondent Windsor (merits) 17–31 and Brief for United States (merits) 18–36 (yes); and compare 699 F. 3d 169, 180–185 (CA2 2012) (yes), with id., at 208–211 (Straub, J., dissenting in part and concurring in part) (no). In accord with my previously expressed skepticism about the Court’s “tiers of scrutiny” approach, I would review this classification only for its rationality. See United States v. Virginia, 518 U. S. 515, 567–570 (1996) (SCALIA, J., dissenting)

Scalia, who in Lawrence called Cleburne and Moreno as “conventional rational-basis analysis,” refers to them here as “deferential framework.”

As nearly as I can tell, the Court agrees with that; its opinion does not apply strict scrutiny, and its central propositions are taken from rational-basis cases like Moreno. But the Court certainly does not apply anything that resembles that deferential framework. See Heller v. Doe, 509 U. S. 312, 320 (1993) (a classification “‘must be upheld . . . if there is any reason- ably conceivable state of facts’” that could justify it).

Scalia, like Roberts, would not be so quick to find that an improper motive undergirds DOMA. (In my opinion, Scalia’s hyperbole mischaracterizes a number of positions taken by the majority, so I will avoid discussing them here, but that is the general gist).

Windsor – Alito

Justice Alito’s characterization of the majority opinion is even more elucidating on this front. Alito begins by highlighting what would generally be accepted as the three tiers of scrutiny.

The modern tiers of scrutiny—on which Windsor and the United States rely so heavily—are a heuristic to help judges determine when classifications have that “fair and substantial relation to the object of the legislation.” Reed, supra, at 76. So, for example, those classifications subject to strict scrutiny—i.e., classifications that must be “narrowly tailored” to achieve a “compelling” government interest, Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 720 (2007) (internal quotation marks omitted)—are those that are “so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy.”

Note how he places the phrase “So-called” before immediate (he does not do so for strict), as if to say it is not really real (this is like a written eye-roll).

In contrast, those characteristics subject to so-called intermediate scrutiny—i.e., those classifications that must be “‘substantially related’” to the achievement of “important governmental objective[s],” United States v. Vir­ ginia, 518 U. S. 515, 524 (1996); id., at 567 (SCALIA, J., dissenting)—are those that are sometimes relevant considerations to be taken into account by legislators, but “generally provid[e] no sensible ground for different treat ment,” Cleburne, supra, at 440.

He also places “so-called” before rational basis.

Finally, so-called rational-basis review applies to classifications based on “distinguishing characteristics relevant to interests the State has the authority to implement.” Cleburne, supra, at 441

Which brings us to Alito’s framing of the issue:

In asking the Court to determine that §3 of DOMA is subject to and violates heightened scrutiny, Windsor and the United States thus ask us to rule that the presence of two members of the opposite sex is as rationally related to marriage as white skin is to voting or a Y-chromosome is to the ability to administer an estate. That is a striking request and one that unelected judges should pause before granting. Acceptance of the argument would cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools. By asking the Court to strike down DOMA as not satisfying some form of heightened scrutiny, Windsor and the United States are really seeking to have the Court resolve a debate between two competing views of marriage.

Viewed in the tiered vision of the issue, this is probably right. But the way the majority looked at it was captured in the colloquy between Kagan and Clement (who may soon be colleagues). Kagan asked the government to explain why there were some improper motives underlying DOMA. If those motives could not be explained away, the government has failed to meet its burden. After Alito discusses competing visions of marriage, he turns to the heart of the scrutiny inquiry–what should be done about different motivations for passing a law.

We have long made clear that neither the political branches of the Federal Government nor state governments are required to be neutral between competing visions of the good, provided that the vision of the good that they adopt is not countermanded by the Constitution. See, e.g., Rust v. Sullivan, 500 U. S. 173, 192 (1991) (“[T]he government ‘may make a value judgment favoring childbirth over abortion’” (quoting Maher v. Rue, 432 U. S. 464, 474 (1977))).

The majority argues that having a vision of the good is not enough for constitutionality. Instead, the vision of the good of some, or even one member (citing “moral disapproval”) is not really good.

There is a fundamental disagreement about the scope of judicial review here, that explains the chasm between the majority and dissent. All of the opinions differ on this one point. Indeed, I would posit that how the Court chooses to frame the issue reflects deeper concerns about the role of judicial review.

Moving Forward

I am working on an article now that catalogues every single case in which the Court has purported to apply some form of rational basis review, and indexing how the burdens were assigned, and how the court weighed those burdens of persuasion. I hope to have this ready a full-length law review article by the fall. I was hoping for some good stuff in DOMA to help the article, but I got a bounty.

Eugene links to a recent N.D. Ill. opinion that does a nice job summarizing how, under the 7th Circuit’s precedents, it is the government that bears the burden to justify the constitutionality of gun control laws.

Although the Supreme Court [in Heller] explained that laws regulating the commercial sale of firearms are “presumptively lawful,” it did not purport to exempt those laws from constitutional scrutiny…. The Seventh Circuit’s analysis in United States v. Williams, 616 F.3d 685 (7th Cir. 2010), is particularly instructive. Williams involved 18 U.S.C. § 922(g)(1)’s ban on the possession of firearms by felons—one of the other “presumptively lawful” regulatory measures specifically identified in Heller. Nonetheless, the Seventh Circuit explained that “the government does not get a free pass”; “it still must prove that the ban is constitutional, a mandate that flows from Heller itself”; and “putting the government through its paces in proving the constitutionality of § 922(g)(1) is only proper.” The Seventh Circuit ultimately applied a form of intermediate scrutiny and upheld § 922(g)(1).

I like the image of putting “putting the government through its paces.” Of course, many courts, even in the 7th Circuit, do not impose this burden on the state.

For example, Justice Breyer would clearly place the burden on the challengers to show that their use of the firearms *is not dangerous* and that the government’s interest doesn’t pass muster. Further, the en banc opinion by Chief Judge Easterbrook in Skoien was overly deferential to the government’s interest, and took great pains to marshall evidence outside the record to make the case for the government. In dissent, Judge Sykes noted “This approach fell far short of the legal heavy lifting normally required to justify criminally punishing the exercise of an enumerated constitutional right.”

When it comes to applying this standard, they give the government a decisive assist; most of the empirical data cited to sustain § 922(g)(9) has been supplied by the court. This is an odd way to put the government to its burden of justifying a law that prohibits the exercise of a constitutional right. With respect, I cannot join the en banc opinion. The court declines to be explicit about its decision method, sends doctrinal signals that confuse rather than clarify, and develops its own record to support the government’s application of § 922(g)(9) to this defendant.

In the recent Madigan decision from the 7th Circuit, Judge , Posner is not willing to give a “decisive assist” to the government because the law impacts not dangerous people, but law abiding people.

Illinois has not made that strong showing—and it would have to make a stronger showing in this case than the government did in Skoien, because the curtailment of gun rights was much narrower: there the gun rights of persons convicted of domestic violence, here the gun rights of the entire lawabiding adult population of Illinois.

In constitutional law, the party that bears the burden usually loses. This, and not any other hand-waving about tiers of scrutiny is what counts. This is the framework I laid out in The Constitutionality of Social Cost with respect to burdens and the Second Amendment:

I propose a framework that provides a judicially man‐ ageable standard for courts to consider these issues. First, it is essential to recognize that the analysis the Court permitted in Heller is unprecedented, and does not fall into any of the three categories discussed above. Second, in order to reconcile the right to keep and bear arms with its brethren in the Bill of Rights, I discuss five questions inherent in all gun cases—what, where, when, who, and why. The answers to these questions lead to the framework I propose: Second Amendment chal‐ lenges should be bifurcated based on the social costs involved and the actor’s propensity for violence. For the deprivation of the liberty of persons lacking a propensity for violence, the burden of persuasion should remain with the state, and stricter judicial scrutiny is warranted. For those who have demon‐ strated a propensity for violence and who are likely to inflict harm in the future, such as violent felons, the burden should rest with the individual, and less exacting judicial scrutiny is appro‐ priate. Under such an approach, which fits snugly inside Heller’s rubric, the Second Amendment can develop and assume its equal station among our most cherished constitutional rights.

 

In Moore v. Madigan, the 7th Circuit per Judge Posner struck down Illinois’s law that forbids people from carrying a gun outside the home.

In a future post, I will write about Posner’s historical analysis, and how it jives with his frequent bouts on originalism with Justice Scalia. In this post I will look at Judge Posner’s explicit consideration of the social cost of the Second Amendment, which dovetails four points I made in The Constitutionality of Social Cost and Judging the Constitutionality of Social Cost: how an applicant’s propensity for danger impacts the social cost calculus, whether the Constitution can mean different things in different places, whether the Second Amendment should mean different things in high-crime areas, and how empirical data about the Second Amendment’s danger should be considered.

Dangerousness of Applicant Asserting 2nd Amendment Right

First, Posner’s analysis explicitly ties the dangerousness of the person seeking to exercise Second Amendment rights with the nature of the burden to limit that right.

In the Constitutionality of Social Cost, I noted that the existing precedents impose different burdens based on who is asserting the right, and how dangerous that person is.

Challenges to laws touching the Second Amendment take two forms that are connected to the who and the why of social cost and liberty. The first type—like the suits in Heller and McDon‐ ald—seeks to challenge an ex ante, or preemptive, restriction to owning or carrying a firearm, such as the denial of a license. The second type of challenges deal with an actor who has shown a propensity for violence—such as cases wherein a convicted vio‐ lent felon seeks restoration of his right to bear arms—and seeks to challenge an ex post restriction to owning or carrying a fire‐ arm, such as the reinstatement of Second Amendment rights. . . .

The inquiry is not an abstract speculation about what danger the owner of the firearm may or may not pose. Rather, the in‐ quiry revolves around the propensity or likelihood of the appli‐ cant to use the firearm dangerously. The showing of the harm must be based on something specific to the person seeking arms—not on general statistics dealing with gun ownership, a categorical approach.

If a person lacks this propensity for violence, I wrote that “the burden should remain with the State.”  However, “for those who have demonstrated a propensity for harm and are likely to inflict said harm in the future—such as violent felons—the burden should rest with the felon.”

A dividing line between those without a proven propensity for violence and those challenging rights rescinded as a result of violence enables the courts to alter based on this criterion who bears the burden of proving or disproving the threat of harm, and what level of judicial scrutiny is appropriate.

Judge Posner’s analysis gravitates around this bifurcated approach.

Construing Chief Judge Easterbrook’s en banc opinion in Skoien, Posner notes that in order to forbid a violent misdemeanant form owning a firearm, the government must “make a ‘strong showing'” about the ban’s contribution to public safety.

And a ban as broad as Illinois’s can’t be upheld merely on the ground that it’s not irrational. Ezell v. City of Chicago, 651 F.3d 684, 701 (7th Cir. 2011); United States v. Yancey, 621 F.3d 681, 683 (7th Cir. 2010) (per curiam); see also Heller v. District of Columbia, supra, 554 U.S. at 628 n. 27; United States v. Chester, 628 F.3d 673, 679–80 (4th Cir. 2010). Otherwise this court wouldn’t have needed, in United States v. Skoien, 614 F.3d 638, 643–44 (7th Cir. 2010) (en banc), to marshal extensive empirical evidence to justify the less restrictive federal law that forbids a person “who has been convicted in any court of a misdemeanor crime of domestic violence” to possess a firearm in or affecting interstate commerce. 18 U.S.C. § 922(g)(9). In Skoien we said that the government had to make a “strong showing” that a gun ban was vital to public safety—it was not enough that the ban was “rational.” 614 F.3d at 641.

Stated more clearly, those who pose a risk are more easily disarmed:

 Similarly, the state can prevail with less evidence when, as in Skoien, guns are forbidden to a class of persons who present a higher than average risk of misusing a gun. See also Ezell v. City of Chicago, supra, 651 F.3d at 708.

However strong that showing is for violent misdemeanants in Skoien–dangerous people–the showing must be greater in order to infringe the rights “entire lawabiding adult population of Illinois.”

Illinois has not made that strong showing—and it would have to make a stronger showing in this case than the government did in Skoien, because the curtailment of gun rights was much narrower: there the gun rights of persons convicted of domestic violence, here the gun rights of the entire lawabiding adult population of Illinois.

A brief note. Posner references Skoien. The en banc opinion by Chief Judge Easterbrook in Skoien was overly deferential to the government’s interest, and took great pains to marshall evidence outside the record to make the case for the government. In dissent, Judge Sykes noted “This approach fell far short of the legal heavy lifting normally required to justify criminally punishing the exercise of an enumerated constitutional right.”

When it comes to applying this standard, they give the government a decisive assist; most of the empirical data cited to sustain § 922(g)(9) has been supplied by the court. This is an odd way to put the government to its burden of justifying a law that prohibits the exercise of a constitutional right. With respect, I cannot join the en banc opinion. The court declines to be explicit about its decision method, sends doctrinal signals that confuse rather than clarify, and develops its own record to support the government’s application of § 922(g)(9) to this defendant.

Here, Posner is not willing to give a “decisive assist” to the government because the law impacts not dangerous people, but law abiding people.

Posner’s analysis continues to stress that the statute in effect applies to “responsible persons” as opposed to those with a propensity for danger.

It is not that all states but Illinois are indifferent to the dangers that widespread public carrying of guns may pose. Some may be. But others have decided that a proper balance between the interest in self-defense and the dangers created by carrying guns in public is to limit the right to carry a gun to responsible persons rather than to ban public carriage altogether, as Illinois with its meager exceptions comes close to doing.

Felons and mentally ill are inherently dangerous people:

And empirical evidence of a public safety concern can be dispensed with altogether when the ban is limited to obviously dangerous persons such as felons and the mentally ill. Heller v. District of Columbia, supra, 554 U.S. at 626. Illinois has lots of options for protecting its people from being shot without having to eliminate all possibility of armed self-defense in public.

But for everyone else, a strong burden remains with the state.

Posner continues to focus on the fact that “law-abiding citizens” who are at risk of murder outside the home should be allowed to use firearms to defend themselves against the criminals.

A gun is a potential danger to more people if carried in public than just kept in the home. But the other side of this coin is that knowing that many law-abiding citizens are walking the streets armed may make criminals timid. Given that in Chicago, at least, most murders occur outside the home, Chicago Police Dep’t, Crime at a Glance: District 1 13 (Jan.–June 2010), the net effect on crime rates in general and murder rates in particular of allowing the carriage of guns in public is uncertain both as a matter of theory and empirically.

This is the calculus inherent in the constitutionality of social cost.

In the end, Illinois is unable to meet its burden:

The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside. The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden.

If you notice, Posner’s opinion is most clearly does not focus on tiers of scrutiny, and barely even mentions the word. I think this approach is candid and correct.

In any event the court in Kachalsky used the distinction between self-protection inside and outside the home mainly to suggest that a standard less demanding than “strict scrutiny” should govern the constitutionality of laws limiting the carrying of guns outside the home; our analysis is not based on degrees of scrutiny, but on Illinois’s failure to justify the most restrictive gun law of any of the 50 states

Tiers of scrutiny do not matter. What matters is who bears the burden, and how strong that burden is. If the state bears a small burden, the state will win. if the state bears a real burden, it will be harder for the state to prevail.

This echoes my approach in my article, where I did not even bother focusing on scrutiny:

This Article will not present an argument in terms of scrutiny, an issue intentionally left open in McDonald and Heller. Al‐ though scrutiny tests ostensibly consider “compelling govern‐ ment interest[s]” or “substantial[] relat[ionships] to . . . important government interests,” these tests “often obscure more than they reveal.”42 The Court’s real inquiry when considering these cases is to determine “whether and when a right may be substan‐ tially burdened in order to materially reduce the danger flow‐ ing from the exercise of the right, and . . . what sort of proof must be given to show that the substantial restriction will in‐deed reduce the danger.”43 This is the question of the constitu‐ tionality of social cost that I address.

But, I do not think Posner’s opinion should be read to say that the state bears the burden of justifying why a permit should be granted–rather I think this analysis is limited to justifying the facial constitutionality of the law. Posner cites favorably (kinda) the 2nd Circuit’s approach, which requires an applicant–a law abiding one at that–to show cause.

This is the inverse of laws that forbid dangerous persons to have handguns; New York places the burden on the applicant to show that he needs a handgun to ward off dangerous persons . . . The New York gun law upheld in Kachalsky, although one of the nation’s most restrictive such laws (under the law’s “proper cause” standard, an applicant for a gun permit must demonstrate a need for self-defense greater than that of the general public, such as being the target of personal threats, id. at *3, *8), is less restrictive than Illinois’s law.

Constitution’s Geography Clause

Second, Posner focuses a bit on the fact that Illinois is the only state with such a restrictive regime (not even Massachusetts is that bad!), and this is a factor that weighs against its unconstitutionality.

Remarkably, Illinois is the only state that maintains a flat ban on carrying ready-to-use guns outside the home, though many states used to ban carrying concealed guns outside the home . . . . Not even Massachusetts has so flat a ban as Illinois, though the District of Columbia does, see D.C. . . . . Even jurisdictions like New York State, where officials have broad discretion to deny applications for gun permits, recognize that the interest in self-defense extends outside the home. There is no suggestion that some unique characteristic of criminal activity in Illinois justifies the state’s taking a different approach from the other 49 states. If the Illinois approach were demonstrably superior, one would expect at least one or two other states to have emulated it.

This is an interesting twist on the laboratories of democracy meme: if this is such a good idea, other states would have done it. I don’t know how persuasive I find it–Illinois, along with Wisconsin (until recently), are also the only states without a right to bear arms provision in the state constitution. In any event, I think Posner, touches on an important issue. Can rights mean different things in different places.

In dissent, Judge Williams citing Justice Brandeis’s canonical–and oft misunderstood view–wrote that states should be able to experiment with Second Amendment policies:

The Supreme Court has “long recognized the role of the States as laboratories for devising solutions to difficult legal problems,” and courts “should not diminish that role absent impelling reason to do so.” Oregon v. Ice, 555 U.S. 160, 171 (2009). Indeed, “[i]t is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). (And to the extent it matters, Illinois is not the only place that has and enforces strict gun laws. New York City, for example, has gun laws that are in effect like those of Illinois; while technically a “may issue” location where the city may issue permits for handgun carry outside the home, New York City rarely does so and so has been characterized as maintaining a virtual ban on handguns. . . . . Reasonable people can differ on how guns should be regulated. Illinois has chosen to prohibit most forms of public carry of ready-to-use guns. It reaffirmed that just last year, when its legislature considered and rejected a measure to permit persons to carry concealed weapons in Illinois. . . . . In the absence of clearer indication that the Second Amendment codified a generally recognized right to carry arms in public for selfdefense, I would leave this judgment in the hands of the State of Illinois.

I reject this approach for reasons I noted in The Constitutionality of Social Cost–rights should not mean different things in different states. More precisely, states cannot experiment with liberty below the Constitutional floor.

Liebmann, generally remembered for Justice Brandeis’s classic dissent, considered whether the Due Process Clause of the Fourteenth Amendment prevented a state legislature from arbitrarily creating restrictions on businesses—in this case, the State had prevented Liebmann from selling ice without a li‐ cense.239 Justice Brandeis’s dissent focused on experimentation in the states with respect to matters of economic liberties, to which he found that the Constitution does not set a minimum floor.240 Contrary to Justice Stevens’s assertion, Justice Brandeis’s dissent does not permit the states to “experiment” with the pro‐ tection of federally protected constitutional rights or incorpo‐ rated enumerated rights.

Dangerousness of the 2nd Amendment

Much of Posner’s opinion wades through various empirical studies linking carrying firearms outside the home and crime. Ultimately though, it seems that the literature is inconclusive.

In sum, the empirical literature on the effects of allowing the carriage of guns in public fails to establish a pragmatic defense of the Illinois law. Bishop, supra, at 922–23; Mark V. Tushnet, Out of Range: Why the Constitution Can’t End the Battle over Guns 110–11 (2007).

But what happens when the evidence is at equipoise, and the “question is close”? Do we do what Judge Wilkinson recommends, and let the tie go to the democratic process? Or to liberty?

Though Posner has written elsewhere favorably about  Wilkinson’s approach to Heller, compelled by Heller, Posner gives the tie to liberty. Why? Because the Second Amendment does not depend purely on “casualty counts” (a morbid image, but it works well).

Anyway the Supreme Court made clear in Heller that it wasn’t going to make the right to bear arms depend on casualty counts. 554 U.S. at 636. If the mere possibility that allowing guns to be carried in public would increase the crime or death rates sufficed to justify a ban, Heller would have been decided the other way, for that possibility was as great in the District of Columbia as it is in Illinois.

This is a point that I think Heller commands, but Judge Wilkinson does not seem to embrace.

Posner directly addresses Wilkinson’s concerns here, and states the obvious–SCOTUS has spoken (I’m sure the fact that Heller was a Scalia opinion makes this a tougher pill to swallow).

Judge Wilkinson expressed concern in United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011), that “there may or may not be a Second Amendment right in some places beyond the home, but we have no idea what those places are, what the criteria for selecting them should be, what sliding scales of scrutiny might apply to them, or any one of a number of other questions. It is not clear in what places public authorities may ban firearms altogether without shouldering the burdens of litigation. The notion that ‘self-defense has to take place wherever [a] person happens to be,’ appears to us to portend all sorts of litigation over schools, airports, parks, public thoroughfares, and various additional government facilities…. The whole matter strikes us as a vast terra incognita that courts should enter only upon necessity and only then by small degree” (citation omitted). Fair enough; but that “vast terra incognita” has been opened to judicial exploration by Heller and McDonald. There is no turning back by the lower federal courts, though we need not speculate on the limits that Illinois may in the interest of public safety constitutionally impose on the carrying of guns in public; it is enough that the limits it has imposed go too far.

A really interesting opinion. I’ll have more shortly.

 

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[1]—such as how the Fourth Amendment would apply to a device that can measure heat signatures inside a home.[2]  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.[3]  These ordinances—many of which were cited in Justice Breyer’s dissent in Heller[4]—are illustrations that “gun possession . . . balanced with gun safety laws was [an idea] that the founders endorsed.”[5]

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