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The title of this post captures a current blogosphere disagreement between Dave Kopel and Doug Berman regarding the interpretation of the Second Amendment in Ezell v. Chicago (analysis here and here) that cuts to the core of this novel jurisprudence. It is also essence of the opening of The Constitutionality of Social Cost.

At Volokh, Kopel wrote that now, the Second Amendment can now be treated like all other constitutional rights.

In short, the Second Amendment is part of normal constitutional law.  The standard of review is not the absolutist “What part of ‘shall not be infringed’ don’t you understand?’” Nor is the standard “reasonableness” as a euphemism for “rational basis so long as all guns are not banned”; nor the weak “undue burden” standard that was invented for one particular unenumerated right which is an extreme outlier in the weakness of its basis in history, tradition, and other sources for unenumerated rights.  Intermediate scrutiny does apply sometimes, as with the First Amendment, and, also as with the First Amendment, stricter scrutiny applies at other times.  As with much of the rest of 21st century constitutional law, the interpretive methodology includes both originalism and a practical analysis which some persons would call “living constitutionalism.”

At Sentencing Blog, Berman disagreed, and noted that because Judge Sykes sought to treat “law-abiding” citizens differently from non law-abiding citizens, this novel Second Amendment jurisprudence is not “part of normal constitutional law.”

The problem I have is with the claim that Ezell demostratrates that the Second Amendment is “part of normal constitutional law,” principally because Ezell distinguishes the Seventh Circuit’s approval in Skoein of the federal crime prohibiting certain misdemeanants from possessing guns (basics here) by emphasizing that only “law-abiding, responsible citizens” get full Second Amendment protection.  If Second Amendment rights and jurisprudence truly depends and pivots on who is deemed a “law-abiding, responsible citizen,” then the Second Amendment is not part of normal constitutional law because I know of no other constitutional right that only protects “law-abiding, responsible citizens.”

I am going to agree and disagree with both Kopel and Berman, in part.

First, I agree with Berman that “no other constitutional right that only protects “law-abiding, responsible citizens.” But that is not to say that the Supreme Court has not modified the requisite constitutional analysis based on an individual’s propensity and history for harming others. Berman acknowledges that certain criminal procedure protections are weakened for felons–but not permanently.

Of course, a citizen’s constitutional rights can and often are diminished or extinguished as a result of conviction and sentencing for a crime.  Incarcerated prisoners, in addition to obviously losing many liberty rights, also generally have no Fourth Amendment rights and have very limited First Amendment rights.  Similarly, duly imposed conditions of probation and/or parole that are part of a formal criminal sentence can lawfully result in restrictions on otherwise constitutional activities and liberties. However, as I have explained in some prior posts, I am not aware of any other fundamental rights expressly protected by the Bill of Rights which are forever lost or forfeited whenever a person has ever once previously broken the law or been less than “responsible” in their behavior.

One big example is the right to vote for felons. The Supreme Court has upheld the denial of the right to vote for felons. This isn’t in the bill of rights, but it is pretty important (dare I say “fundamental”). In Romer v. Evans, the Court found the denial of this right appropriate.

Romer v. Evans, 517 U.S. 620, 634 (1996) (“To the extent Davis held that a convicted felon may be denied the right to vote, its holding is not implicated by our decision and is unexceptionable.”).

Beyond the right to vote, I think there are certain rights that are permanently weakened (albeit not forfeited) upon conviction (or even an accusation of a crime). As I noted in Social Cost, the right to bail, the right to a speedy trial are all influenced by a person’s previous misconduct. Further, an officer’s knowledge of a person’s criminal past can certainly figure into the calculus for reasonable suspicion or probable cause. In these cases, liberty can be deprived based on previous showings of dangerousness as long as certain procedures are followed.

The Court has recognized that “[a] jury hearing evidence of a defendantʹs demonstrated propensity for violence reasonably will conclude that he presents a risk of violent behavior, whether locked up or free, and whether free as a fugitive or as a parolee.”377 Although juries generally are not allowed to consider this evidence, judges are—and are just as likely to weigh the dangerousness of the actor when making certain decisions. The balancing of liberties and potential societal harm is most clearly seen in cases dealing with the right to bail378 and the right to a speedy trial.379 These threats, though latent, assume an air of criticality in light of the bad actor.

377. Kelly v. South Carolina, 534 U.S. 246, 253–54 (2002).

378. See United States v. Salerno, 481 U.S. 739 (1987) (addressing the right to bail).

379. Barker v. Wingo, 407 U.S. 514 (1972) (addressing the right to a speedy trial).

Yes, there is no permanent abandonment of the right, but if a person with a criminal conviction, or at least some serious accusations of previous crimes, comes before a magistrate, that past can and will be considered in determinations of bail.

The Court in Salerno recognized that “[w]hile the Government’s general interest in pre‐ venting crime is compelling, even this interest is heightened when the Government musters convincing proof that the ar‐ restee, already indicted or held to answer for a serious crime, presents a demonstrable danger to the community.”393 The Court balanced this concern with“[o]n the other side of the scale, . . . the individual’s strong interest in liberty.”394

When dangers to the community can be shown through a person’s priors (and you can be sure any competent prosecutor would bring these prior crimes to the attention of a magistrate), 8th Amendment interests in reasonable bail cant be weakened.

Likewise, when a judge is considering a defendant’s right to a speedy trial, the defendant’s possibility of flight and danger to the community are considered.

In Barker v. Wingo, the Court recognized these competing interests, noting that the right of “accused persons [to] be treated according to decent and fair procedures” needs to be balanced with certain “societal interest[s].”401 The infringement on individual liberty of those “in jail awaiting trial has a detri‐ mental impact on the [defendant]. It often means loss of a job; it disrupts family life; and it enforces idleness.”402 In short, “time spent in jail is simply dead time.”403 On the other front, the social costs associated with the delay “enables defendants to negotiate more effectively for pleas of guilty to lesser offenses and otherwise manipulate the sys‐ tem.”404 Further delays may provide defendants who are “awaiting trial . . . an opportunity to commit other crimes,”405 as “the longer an accused is free awaiting trial, the more tempt‐ ing becomes his opportunity to jump bail and escape.”406

Both of these examples, broadly speaking, feed into the framework of the Constitutionality of Social Cost. Rights are weakened–through less rigorous process–based on a person’s propensity for violence. For that reason, in a post analyzing social cost in Ezell, I was somewhat critical of Judge Sykes’ focusing solely on whether a person was law-abiding. The focus should be, more broadly, on whether the person has a propensity for violence; is this person one who likely will hurt someone else with this gun, and what reason do we have to think this is the case?

The bifurcation I propose is based on the individual’s propensity for violence (pp. 91-95).

I don’t think this bifurcation would render the Second Amendment totally separate from constitutional norms. Like with the right to bail, or the right to a speedy trial, those who have shown a propensity for violence would bear a burden–and a steep burden at that–of showing they should be entitled to this presumption of liberty. I can’t imagine a convicted felon obtaining bail if brought before a magistrate following an arrest. There will be concerns the felon could harm his community. Likewise, I think it would be a far stretch for a felon to petition the state to obtain a firearm, and obtain one. Yet, both rights require process–some process, whereby the felon can seek to vindicate his rights (even if these processes are likely to be unsuccessful. The key difference, is this process is less rigorous for those with this propensity for violence.

In contrast, 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. Like the defendants in Salerno and Wingo, the burden would rest with the accused to demonstrate he does not pose a threat. This is not to say that felons of all stripes should be perpetually dis‐ armed, as the very nature and number of felonies has proliferated to include many types of non‐violent crimes537—crimes that say nothing about the defendant’s propensity for harming others (Martha Stewart for example).538 This burden is not insurmountable, but the individual must show that he no longer poses such a threat. Even the National Rifle Association is in favor of limiting firearm ownership to law‐abiding citizens.539 This limiting principle would assuage concerns on both sides of the issue, and provide the Court with a judicially manage‐ able standard to balance liberty and social costs.

Putting aside the difference in phrasing,  I think Judge Sykes split the difference quite well in Ezell with the separation between “law-abiding citizens,” and those with a propensity for violence (they frequently will overlap). A previous 7th Circuit precedent, Skoien, found that  18 U.S.C. 922(g)(9)–which prohibits the possession of firearms by persons convicted of a domestic‐violence misdemeanor–is constitutional. In contrast, the ban of all firming ranges in question in Ezell, applied to “law‐abiding, responsible citizens” was unconstitutional.

One important point: These weakening of rights for Bond and Speedy Trial are not complete forfeitures of the right, but neither is Skoien (even some process exists whereby an applicant can petition–almost always unsuccesfully–for the restoration of his right).

This bifurcation, which at first blush may seem unfamiliar, finds a long pedigree in our constitutional law jurisprudence–process is varied with respect to fundamental constitutional rights based on a person’s propensity for violence. So in this sense, our Second Amendment jurisprudence is part of normal constitutional law (which may not be as “normal” as we think).

Second, in response to Kopel, I don’t think that the Second Amendment is part of normal constitutional law–yet, largely for the reasons discussed in Social Cost. Most obviously, until the Supreme Court adopts the 7th Circuit’s Skoien/Ezell framework, it only helps people in a Illinois and Wisconsin (which  are 2 states without a right to keep and bear arms provision in the state Constitution Update: I originally wrote those were the only two but that is in error), and Indiana. But putting that aside, there are several aspects of Heller and McDonald that the majorities left open that make this right different from all other rights.

Simply put:

Under our current Second Amendment jurisprudence people who have shown no propensity for violence may be denied the exercise of their constitutional right without any specific rea‐ son, based solely on legislative judgments grounded on dis‐ puted statistics499 that show a person with a firearm may be likely to engage in violence.500 This ex ante deprivation of liberty with restrained judicial oversight is unprecedented.

In the Constitutionality of Social Cost, I divide Supreme Court precedents concerning the balance of individual liberty and social costs (negative externalities) into 3 categories.

First, when a harm or threat to society is imminent, the courts permit greater infringements of individual liberty, with minimal, if any judicial oversight.  (Unlawful incitement to imminent violence under Brandenburg, Fighting Words under Chaplinsky, and the Public Safety Exception to Miranda and exigent Circumstances).

Second, when a threat is not yet imminent, but a person’s previous misconduct reveals a pro‐ pensity towards future violence, the courts permit an infringement of individual liberties, but mandate certain forms of judicial oversight.314 (Right to Bail and Right to Speedy Trial, see supra)

Third, when a threat is cognizable, but not necessarily imminent, the courts permit infringement, but with greater judicial scrutiny.315 (The Exclusionary Rule and its Good Faith Exception and Miranda)

The Second Amendment falls into what I see as a fourth, and distinct category:

In this fourth category, even if a threat is not cognizable, nor is it imminent, and the anticipated actor presents no pro‐ pensity for danger, and the proposed harm is based on em‐ pirical data of what may, or may not happen, courts can permit the infringement of the constitutional right.316 In no other context is a pre‐emptive infringement of a constitutional right permissible with such an attenuated relationship to pre‐ venting social costs, and such a minimal showing that the person whose rights are being infringed actually poses a dan‐ ger.

…

Merely seeking to obtain or carry a firearm does not present a cognizable harm or threat to society that is imminent.501 Deprivation of individual liberty requires more of a nexus with harm than disputed statistics of what crime may or may not happen, and empty labels like “felons and the mentally ill”502 are not always dispositive (a re‐ formed prior felon or a healed person previously diagnosed as mentally ill may no longer pose dangers to others).503

The majority failed to rebut a point that Justice Breyer made in both McDonald and Heller dissents–guns are dangerous, and because disputed ex ante statistics of what may happen tell us this, we should deprive this right. Contrary to Justice Breyer’s lone dissent in EMA, empirical studies are not sufficient to overcome fundamental constitutional rights.

Judge Sykes largely dismissed the City’s proffered statistics that beared no relationship to what actually may happen. I have written elsewhere about the Court’s balancing of social costs, liberty, and statistics. The Court would be well served to heed Justice Scalia’s comment to Justice Breyer made  during oral arguments in McDonald:

JUSTICE BREYER: There are two ways [to consider the firearm regulation]. One is that—look at—all you have to do is look at the briefs. Look at the statistics. You know, one sidesaysa million people killed by guns. Chicago says that their—their gun law has saved hundreds, including—and they havestatistics—including lots of women in domestic cases. Andthe other side disputes it. This is a highly statistical matter.. . . .

JUSTICE SCALIA: There’s a lot of statistical disagreement onwhether the Miranda rule saves lives or not, whether it results in the release of dangerous people who have confessed to their crime, but the confession can’t be used. We don’t—we don’tresolve questions like that on the basis of statistics, do we?

So the Second Amendment is similar to other rights, and different from other rights. While I recognize the utility of comparisons of the First and Second Amendment, my approach is more holistic–compare it to the entire bill of rights.

Liberty interests certainly vary by type, but the Court’s precedents balancing those interests against society’s need for safety and security coalesce into different schools. By reconceptualizing the right to keep and bear arms through the lens of social cost, in light of over a century of Supreme Court jurisprudence, one can see that despite its dangerous potential, the Second Amendment is not so different from all other rights; accordingly, it should not be treated differently.

The exercise of all liberty interests has negative externalities and social costs. Recognizing, and understanding this, is the first step towards embracing the Second Amendment.

Cross-Posted at ConcurringOpinions.com.

While I was absolutely thrilled that Judge Sykes cited Pandora’s Box in Ezell v. Chicago (analysis here), perhaps the most interesting aspect–to me at least–is how closely her analysis, and the analysis by the concurring Judge Rovner, tracked the arguments I advanced in The Constitutionality of Social Cost.

Bifurcate Challenges based on Propensity for Violence

First, Judge Sykes sought to bifurcate Second Amendment challenges between dangerous people, and non-dangerous people.

Judge Sykes approved of the “intermediate scrutiny” applied in United States v. Skoien, a criminal prosecution under 18 U.S.C. 922(g)(9).

In Skoien we required a “form of strong showing”—a/k/a “intermediate scrutiny”—in a Second Amendment challenge to a prosecution under 18 U.S.C. § 922(g)(9), which prohibits the possession of firearms by persons convicted of a domestic‐violence misdemeanor. 614 F.3d at 641. We held that “logic and data” established a “substantial relation” between dispossessing domestic‐violence misdemeanants and the important governmental goal of “preventing armed mayhem.” Id. at 642. Intermediate scrutiny was appropriate in Skoien because the claim was not made by a “law‐abiding, responsible citizen” as in Heller, 554 U.S. at 635; nor did the case involve the central self‐defense component of the right, Skoien, 614 F.3d at 645.

In Skoien, the burden effectively rested with the individual to show why the categorical ban was not appropriate. Skoien failed this burden (unsurprising).

In contrast, Mr. Ezell–like Mr. Heller, and Mr. McDonald–was a “law‐abiding, responsible citizens.” A different analysis–that is heightened (really strict) scrutiny applies. In cases with a non-violent applicant, the state bears the burden of justifying the infringement on individual liberty.

Here, in contrast, the plaintiffs are the “law‐abiding, responsible citizens” whose Second amendment rights are entitled to full solicitude under Heller, and their claim comes much closer to implicating the core of the Second Amendment right. The City’s firing‐range ban is not merely regulatory; it prohibits the “law‐abiding, responsible citizens” of Chicago from engaging in target practice in the controlled environment of a firing range. This is a serious encroachment on the right to maintain proficiency in firearm use, an important corollary to the meaningful exercise of the core right to possess firearms for self‐defense. That the City conditions gun possession on range training is an additional reason to closely scrutinize the range ban. All this suggests that a more rigorous showing than that applied in Skoien should be required, if not quite “strict scrutiny.”

Burden of Proof with Actual Evidence

Second, Judge Sykes requires that the burden be proven with non-speculative, evidence of cognizable social harms.

To be appropriately respectful of the individual rights at issue in this case, the City bears the burden of establishing a strong public‐interest justification for its ban on range training: The City must establish a close fit between the range ban and the actual public interests it serves, and also that the public’s interests are strong enough to justify so substantial an encumbrance on individual Second Amendment rights. Stated differently, the City must demonstrate that civilian target practice at a firing range creates such genuine and serious risks to public safety that prohibiting range training throughout the city is justified.

…

Indeed, on this record those concerns are entirely speculative and, in any event, can be addressed through sensible zoning and other appropriately tailored regulations.

This differs from the approach taken by Justice Breyer in dissent, whereby studies about what *could* happen in the future were sufficient to deprive McDonald of his constitutional rights. As I noted in Social Cost:

Under our current Second Amendment jurisprudence people who have shown no propensity for violence may be denied the exercise of their constitutional right without any specific reason, based solely on legislative judgments grounded on disputed statistics505 that show a person with a firearm may be likely to engage in violence.506 This ex ante deprivation of liberty with restrained judicial oversight is unprecedented . . .

Such an approach, with rejects ex ante studies, sounds in strict scrutiny (as opposed to Justice Oliver Wendell Breyer’s dissent in EMA where he went outside the record to find studies to support his approach).

Statistics and Common Sense

Third, there is a dispute over the role of statistics and common sense between Judge Sykes and Judge Rovner.

Judge Sykes is not willing to accept the City’s speculative assertions–not backed up by any concrete facts–that permitting ranges will result in violence.

The City maintains that firing ranges create the risk of accidental death or injury and attract thieves wanting to steal firearms. But it produced no evidence to establish that these are realistic concerns, much less that they warrant a total prohibition on firing ranges. In the First Amendment context, the government must supply actual, reliable evidence to justify restricting protected expression based on secondary public‐safety effects. By analogy here, the City produced no empirical evidence
whatsoever and rested its entire defense of the range ban on speculation about accidents and theft.

In contrast, Judge Rovner does not need studies, and based on “common sense” finds that guns are dangerous. She calls Judge Sykes’ approach “naive.”

The majority’s summary dismissal of the City’s concern for public safety related to live gun ranges is to my mind naive. One need only perform a simple internet search on “gun range accidents” to see the myriad ways that gun owners manage to shoot themselves and others while practicing in these supposedly safe environments. From dropping a loaded gun in a parking lot to losing control of a strong weapon on recoil, gun owners have caused considerable damage to themselves and others at live gun ranges. To say that the City’s concerns for safety are “entirely speculative” is unfounded. Ante, at 46. At this stage of the litigation, the City has not yet had an opportunity to develop a full record on the safety issues raised by placing live gun ranges in an urban environment. Common sense tells us that guns are inherently dangerous; responsible gun owners treat them with great care. Unfortunately, not all gun owners are responsible. The City has a right to impose reasonable time, place and manner restrictions on the operation of live ranges in the interest of public safety and other legitimate governmental concerns.

This dynamic between statistics,common sense, and social cost, was recently explored in a Supreme Court case, (aptly named),  Sykes v. United States. As I previously discussed:

What role should statistics of social play in judicial decision making? In Sykes v. United States, in order to determine whether a vehicular flight from the police is likely to be dangerous, the majority opinion from Justice Kennedy, as well as the concurring opinion from Justice Thomas, heavily relied on empirical data.

Justice Kennedy noted that “although statistics are not dispositive, here they confirm the commonsense conclusion that Indiana’s vehicular flight crime is a violent felony.” Justice Thomas wrote that “common experience and statistical evidence confirm the “potential risk” of intentional vehicular flight.”  Justice Kagan found that the data was inconclusive, but noted the “majority’s intuition that dangerous flights outstrip mere failures to stop—that the aggravated form of the activity is also the ordinary form—seems consistent with common sense and experience.”

Here, we have 8 Justices who have different views about statistical data supporting social costs from vehicular flight, but in large part due to “commonsense conclusions,” “common experience,” “intuition” and “common sense and experience,” they agree on the outcome. None of these statistics were even introduced at trial, or admitted into evidence. Should courts be able to take judicial notice of these statistics because they conform to common sense?

What is the proper role for courts to consider statistics and common sense to illustrate social costs, such as dangers from vehicular flight?

The reliance of experts, and ex ante studies, is a key to judging the constitutionality of social cost.

Presumption of Liberty

Judge Sykes reads Heller as rejecting a “presumption of constitutionality.”

We proceed, then, to the second inquiry, which asks whether the City’s restriction on range training survives Second Amendment scrutiny. As we have explained, this requires us to select an appropriate standard of review. Although the Supreme Court did not do so in either Heller or McDonald, the Court did make it clear that the deferential rational‐basis standard is out, and with it the presumption of constitutionality. Heller, 554 U.S. at 628 n.27 (citing United States v. Carolene Prods., 304 U.S. 144, 152 n.4 (1938)). This necessarily means that the City bears the burden of justifying its action under some heightened standard of judicial review.

This is key. Judge Sykes places the overall burden on the state to justify this infringement of individual liberty. Though, this presumption only applies to rights in the Core (and not the pennumbra, as I’ve called it, or the margin) of the Second Amendment.

Labels aside, we can distill this First Amendment doctrine and extrapolate a few general principles to the Second Amendment context. First, a severe burden on the core Second Amendment right of armed self‐defense will require an extremely strong public‐interest justification and a close fit between the government’s means and its end. Second, laws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easily justified. How much more easily depends on the relative severity of the burden and its proximity to the core of the right.

Unfortunately, Joe Blocher’s article on categoricalism and balancing in the Second Amendment is not cited, though it should be.

I’ll have lots more about this article in due time.

The 7th Circuit, per Judge Sykes, just handed down the opinion in Ezell v. Chicago, reversing the District Court’s denial of Plaintiffs request for a preliminary injunction (the injunction sough to restrain the City’s ban on shooting ranges). In other words, Chicago lost. Judge Rovner concurred in judgment.

Here is the crux of the case:

The plaintiffs here challenge the City Council’s treatment of firing ranges. The Ordinance mandates one hour of range training as a prerequisite to lawful gun ownership, see CHI. MUN. CODE § 8‐20‐120, yet at the same time prohibits all firing ranges in the city, see id. § 8‐20‐080. The plaintiffs contend that the Second Amend‐ment protects the right to maintain proficiency in firearm use—including the right to practice marksmanship at a range—and the City’s total ban on firing ranges is unconstitutional. They add that the Ordinance severely burdens the core Second Amendment right to possess firearms for self‐defense because it conditions possession on range training but simultaneously forbids range training everywhere in the city. Finally, they mount a First Amendment challenge to the Ordinance on the theory that range training is protected expression. The plaintiffs asked for a preliminary injunction, but the district court denied this request.

We reverse. The court’s decision turned on several legal errors. To be fair, the standards for evaluating Second Amendment claims are just emerging, and this type of litigation is quite new. Still, the judge’s decision reflects misunderstandings about the nature of the plaintiffs’ harm, the structure of this kind of constitutional claim, and the proper decision method for evaluating alleged infringements of Second Amendment rights. On the present record, the plaintiffs are entitled to a preliminary injunction against the firing‐range ban. The harm to their Second Amendment rights cannot be remedied by damages, their challenge has a strong likelihood of success on the merits, and the City’s claimed harm to the public interest is based entirely on speculation.

I will add more analysis as I make my way through the case.

Judge Sykes faults the analysis used by the District Court to consider the injunction. This flawed approach is premised, in no small part, on a misguided understanding of the Second Amendment.

The district court got off on the wrong foot by accepting the City’s argument that its ban on firing ranges causes only minimal harm to the plaintiffs—nothing more than the minor expense and inconvenience of traveling to one of 14 firing ranges located within 50 miles of the city limits—and this harm can b e a d equ a t e l y c o m p e n s a t e d b y money damages. This characterization of the plaintiffs’ injury fundamentally misunderstands the form of this claim and rests on the mistaken premise that range training does not implicate the Second Amendment at all, or at most only minimally. The City’s confused approach to this case led the district court to make legal errors on several fronts: (1) the organizational plaintiffs’ standing; (2) the nature of the plaintiffs’ harm; (3) the scope of the Second Amendment right as recognized in Heller and applied to the
States in McDonald; and (4) the structure and standards for judicial review of laws alleged to infringe Second Amendment rights.

With respect to organizational standing, an important point that was not address in McDonald (because the Court took McDonald, rather than the NRA’s petition), Judge Sykes found that organizations do have standing.

Regarding the organizational plaintiffs, however, the City’s argument led the district court astray. The City emphasized that the Second Amendment protects an individual right, not an organizational one, and this point led the court to conclude that “the organizations do not have the necessary standing to demonstrate their irreparable harm.”7 This was error. Action Target, as a supplier of firing‐range facilities, is harmed by the firing range ban and is also permitted to “act[] as [an] advocate[] of the rights of third parties who seek access to” its services.

Specifically, the Second Amendment Foundation has standing:

The Second Amendment Foundation and the Illinois Rifle Association have many members who reside in Chicago and easily meet the requirements for associational standing: (1) their members would otherwise have standing to sue in their own right; (2) the interests the associations seek to protect are germane to their organizational purposes; and (3) neither the claim asserted nor the relief requested requires the participation of individual associa‐ tion members in the lawsuit.

With respect to individual harm, Judge Sykes analogizes the First and Second Amendments, to illustrate the point that allowing firing ranges outside the city is not sufficient.

In the First Amendment context, the Supreme Court long ago made it clear that “ ‘one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.’ ” Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 76‐77 (1981) (quoting Schneider v. State of New Jersey, 308 U.S. 147, 163 (1939)). The same principle applies here. It’s hard to imagine anyone suggesting that Chicago may prohibit the exercise of a freespeech or religious‐liberty right within its borders on the rationale that those rights may be freely enjoyed in the suburbs. That sort of argument should be no less unimaginable in the Second Amendment context.

The court reads Salerno very broadly to permit this facial challenge, which “stands as a fixed harm to every Chicagoan’s Second Amendment right.”

That is, the City Council violated the Second Amendment when it made this law; its very existence stands as a fixed harm to every Chicagoan’s Second Amendment right to maintain proficiency in firearm use by training at a range. This kind of constitutional harm is not measured by whether a particular person’s gasoline or mass‐transit bill is higher because he must travel to a firing range in the suburbs rather than one in the city, as the district court seemed to think. Whatever else the Salerno principle might mean for this case, it neither requires nor supports the district court’s approach to irreparable harm.

Continuing the comparisons between the First and Second Amendment, Judge Sykes notes that violations of both rights are presumed to “constitute irreparable injuries.”

The loss of a First Amendment right is frequently presumed to cause irreparable harm based on “the intangible nature of the benefits flowing from the exercise of those rights; and the fear that, if those rights are not jealously safeguarded, persons will be deterred, even if imperceptibly, from exercising those rights in the future.” Miles Christi Religious Order v. Twp. of Northville, 629 F.3d 533, 548 (6th Cir. 2010) (internal alteration and quotation marks omitted); see also KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006). The Second Amendment protects similarly intangible and unquantifiable interests. Heller held that the Amendment’s central component is the right to possess firearms for protection. 554 U.S. at 592‐95. Infringements of this right cannot be
compensated by damages.10

Key sentence:

In short, for reasons related to the form of the claim and the substance of the Second Amendment right, the plaintiffs’ harm is properly regarded as irreparable and having no adequate remedy at law.

Judge Sykes was critical of the District Court Judge’s refusal to apply intermediate scrutiny “and by implication, rejected any form of heightened review.”

There are several problems with this analysis. First, it is incomplete. The judge identified but did not evaluate the Second Amendment merits question. More importantly, the court framed the inquiry the wrong way. Finally, it was a mistake to reject heightened scrutiny. The judge was evidently concerned about the novelty of Second Amendment litigation and proceeded from a default position in favor of the City. The concern is understandable, but the default position cannot be reconciled with Heller.

Judge Sykes read Heller as creating a “framework” to resolve Second Amendment cases.

It’s true that Second Amendment litigation is new, and Chicago’s ordinance is unlike any firearms law that has received appellate review since Heller. But that doesn’t mean we are without a framework for how to proceed. The Supreme Court’s approach to deciding Heller points in a general direction. Although the critical question in Heller—whether the Amendment secures an individual or collective right—was interpretive rather than doctrinal, the Court’s decision method is instructive.

With little precedent to synthesize, Heller focused almost exclusively on the original public meaning of the Second Amendment, consulting the text and relevant historical materials to determine how the Amendment was understood at the time of ratification. This inquiry led the Court to conclude that the Second Amendment secures a pre‐existing natural right to keep and bear arms; that the right is personal and not limited to militia service; and that the “central component of the right” is the right of armed self‐defense, most notably in the home.

Sykes find that because Heller excluded rational basis review, it entails heightened scrutiny.

For our purposes, however, we know that Heller’s reference to “any standard of scrutiny” means any heightened standard of scrutiny; the Court specifically excluded rational‐basis review. . . . Beyond that, the Court was not explicit about how Second Amendment challenges should be adjudicated now that the historic debate about the Amendment’s status as an individual‐rights guarantee has been
Settled.

Drawing from the Heller dicta, Judge Sykes draws several “key insights.” First, relying on Eugene Volokh’s framework, the threshold inquiry is about the scope.

First, the threshold inquiry in some Second Amendment cases will be a “scope” question: Is the restricted activity protected by the Second Amendment in the first place? See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self‐Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. REV. 1443, 1449. The answer requires a textual and historical inquiry
into original meaning.

Judge Sykes also elaborates on the original understanding of the 14th Amendment, with respect to the 14th Amendment.

Keeping Pandora’s Box Sealed, which I co-authored with Ilya Shapiro, was cited by Judge Sykes in Ezell v. Chicago (analysis here) in Footnote 11 on Page 30.

Above the line:

Setting aside the ongoing debate about which part of the Fourteenth Amendment does the work of incorporation, and how, see id. at 3030‐31 (plurality opinion of Alito, J.); id. at 3058‐80 (Thomas, J., concurring); id. at 3089‐99 (Stevens, J., dissenting); id. at 3120‐21 (Breyer, J., dissenting), this wider historical lens is required if we are to follow the Court’s lead in resolving questions about the scope of the Second Amendment by consulting its original public meaning as both a starting point and an important constraint on the analysis. See Heller, 554 U.S. at 610‐19; McDonald, 130 S. Ct. at 3038‐ 42.11

Below the line:

11 On this aspect of originalist interpretive method as applied to the Second Amendment, see generally AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 215‐30, 257‐ 67 (1998); Brannon P. Denning & Glenn H. Reynolds, Five Takes on McDonald v. Chicago, 26 J.L & POL. 273, 285‐87 (2011); Josh Blackmun & Ilya Shapiro, Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States, 8 GEO. J.L. & PUB. POL’Y 1, 51‐57 (2010); Clayton E. Cramer, Nicholas J. Johnson & George A. Mocsary, “This Right Is Not Allowed by Governments That Are Afraid of the People”: The Public Meaning of the Second Amendment When the Fourteenth Amendment Was Ratified, 17 GEO. MASON L. REV. 823, 824‐25 (2010); Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 TEX. L. REV. 7, 11‐17, 50‐54 (2008); Randy E. Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, 83 TEX. L. REV. 237, 266‐70 (2004); David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. REV. 1359; Stephen P. Halbrook, Personal Security, Personal Liberty, and “The Constitutional Right to Bear Arms”: Visions of the Framers of the Fourteenth Amendment, 5 SETON HALL CONST. L.J. 341 (1995).

My last name is not spelled “Blackmun” (I get that a lot, not surprisingly, but I’ll take it!). I am still freaking out to be in the same footnote as (gasp) Akhil and Randy! Epic win.

Sykes directly analogizes between the First and Second Amendment with respect to unprotected activities.

The Supreme Court’s free‐speech jurisprudence contains a parallel for this kind of threshold “scope” inquiry. The Court has long recognized that certain “well‐defined and narrowly limited classes of speech”—e.g., obscenity, defamation, fraud, incitement—are categorically “outside the reach” of the First Amendment. When the Court has “identified categories of speech as fully outside the protection of the First Amendment, it has not been on the basis of a simple cost‐benefit analysis.” Stevens, 130 S. Ct. at 1586. Instead, some categories of speech are unprotected as a matter of history and legal tradition. Id. So too with the Second Amendment.

Here is the test, which sounds in an originalist categorical approach:

Accordingly, if the government can establish that a challenged firearms law regulates activity falling outside the scope of the Second Amendment right as it was understood at the relevant historical moment—1791 or 1868—then the analysis can stop there; the regulated activity is categorically unprotected, and the law is not subject to further Second Amendment review.

If this test is not satisfied, next comes the scrutiny:

If the government cannot establish this—if the historical evidence is inconclusive or suggests that the regulated activity is not categorically unprotected—then there must be a second inquiry into the strength of the government’s justification for restricting or regulating the exercise of Second Amendment rights. Deciding whether the government has transgressed the limits imposed by the Second Amendment—that is, whether it has “infringed” the right to keep and bear arms—requires
the court to evaluate the regulatory means the government has chosen and the public‐benefits end it seeks to achieve. Borrowing from the Court’s First Amendment doctrine, the rigor of this judicial review will depend on how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right.

Judge Sykes cites to work from Volokh, Lund, Winkler, Solumn, Reynolds, and Denning to explain this scrutiny.

For laws that do not burden the core of the Second Amendment, the Court is to apply some form of heightened scrutiny.

Both Heller and McDonald suggest that broadly prohibitory laws restricting the core Second Amendment right—like the handgun bans at issue in those cases, which prohibited handgun possession even in the home—are categorically unconstitutional. For all other cases, however, we are left to choose an appropriate standard of review from among the heightened standards of scrutiny the Court applies to governmental actions alleged to infringe enumerated constitutional rights; the answer to the Second Amendment “infringement” question depends on the government’s ability to satisfy whatever standard of means‐end scrutiny is held to apply.

Next Judge Sykes reconciled this opinion with the 7th Circuit’s opinion in Skoien (which En Banc reversed here).

The approach outlined here does not undermine Skoien, 614 F.3d at 639‐43, or United States v. Williams, 616 F.3d 685, 691‐93 (7th Cir. 2010), both of which touched on the historical “scope” question before applying a form of intermediate scrutiny.

She also distinguishes it from the framework in Nordyke v. King.

The Ninth Circuit recently adopted a somewhat different framework for Second Amendment claims. In ordyke v. King, a divided panel announced a gatekeeping “substantial burden” test before the court will apply heightened scrutiny. No. 07‐ 15763, 2011 WL 1632063, at *4‐6 (9th Cir. May 2, 2011) (O’Scannlain, J.). Under this approach only laws that substantially burden Second Amendment rights will get some form of heightened judicial review. Id. The Nordyke majority specifically deferred judgment on “what type of heightened scrutiny applies to laws that substantially burden Second Amendment rights.” Id. at *6 n.9. Judge Gould, concurring in Nordyke, would apply heightened scrutiny “only [to] arms regulations falling within the core purposes of the Second Amendment, that is, regulations aimed at restricting defense of the home, resistance of tyrannous government, and protection of country.” Id. at *15. All other firearms laws, he said,
should be reviewed for reasonableness, id., although by this he meant the sort of reasonableness review that applies in the First Amendment context, not the deferential rational basis review that applies to all laws, id. at *16.

Judge Sykes notes the city’s contradictory position—you need firearm training to get a permit, but it won’t let people obtain firearm training in the city.

Indeed, the City considers live firing‐range training so critical to responsible firearm ownership that it mandates this training as a condition of lawful firearm possession. At the same time, however, the City insists in this litigation that range training is categorically outside the scope of the Second Amendment and may be completely prohibited. There is an obvious contradiction here, but we will set it aside for the moment and consider the City’s support for its categorical position.

Judge Sykes even nails originalism at the right time, by looking at the meaning of the right ot keep and bear arms leading up to the ratification of the 14th Amendment.

The City points to a number of founding‐era, antebellum, and Reconstruction state and
local laws that limited the discharge of firearms in urban environments. As we have noted, the most relevant historical period for questions about the scope of the Second Amendment as applied to the States is the period leading up to and surrounding the ratification of the Fourteenth Amendment. That point aside, most of the statutes cited bythe City are not specific to controlled target practice and, in any event, contained significant carveouts and exemptions.

Sykes distinguishes the historical examples of “regulatory measures” from Chicago’s “absolute prohibition.”

In short, these laws were merely regulatory measures, distinguishable from the City’s absolute prohibition on firing ranges. . . . These “time, place, and manner” regulations do not support the City’s position that target practice is categorically unprotected.

Judge Sykes reads Heller as rejecting a “presumption of constitutionality.”

We proceed, then, to the second inquiry, which asks whether the City’s restriction on range training survives Second Amendment scrutiny. As we have explained, this requires us to select an appropriate standard of review. Although the Supreme Court did not do so in either Heller or McDonald, the Court did make it clear that the deferential rational‐basis standard is out, and with it the presumption of constitutionality. Heller, 554 U.S. at 628 n.27 (citing United States v. Carolene Prods., 304 U.S. 144, 152 n.4 (1938)). This necessarily means that the City bears the burden of justifying its action under some heightened standard of judicial review.

The Court looks to the First Amendment for tips on scrutiny.

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 (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; 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 Amendment context,

After reciting the standards for free speech scrutiny (with citations to Arizona Free Enterprise and Sorrell, so it’s fresh), Judge Sykes distills “a few general principles.”

Labels aside, we can distill this First Amendment doctrine and extrapolate a few general principles to the Second Amendment context. First, a severe burden on the core Second Amendment right of armed self‐defense will require an extremely strong public‐interest justification and a close
fit between the government’s means and its end. Second, laws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easily justified. How much more easily depends on the
relative severity of the burden and its proximity to the core of the right.

Judge Sykes provides for a bifurcation between the “law-abiding responsible citizens” in Heller and the criminals in Skoien. This parallels the exact recommendation I made in the Constitutionality of Social Cost—treat people differently if they have shown a propensity for violence.

In Skoien we required a “form of strong showing”—a/k/a “intermediate scrutiny”—in a Second Amendment challenge to a prosecution under 18 U.S.C. § 922(g)(9), which prohibits the possession of firearms by persons convicted of a domestic‐violence misdemeanor. 614 F.3d at 641. We held
that “logic and data” established a “substantial relation” between dispossessing domestic‐violence misdemeanants and the important governmental goal of “preventing armed mayhem.” Id. at 642. Intermediate scrutiny was appropriate in Skoien because the claim was not made by a “law‐abiding,
responsible citizen” as in Heller, 554 U.S. at 635; nor did the case involve the central self‐defense component of the right, Skoien, 614 F.3d at 645.

Here, in contrast, the plaintiffs are the “law‐abiding, responsible citizens” whose Second amendment rights are entitled to full solicitude under Heller, and their claim comes much closer to implicating the core of the Second Amendment right. The City’s firing‐range ban is not merely regulatory; it prohibits the “law‐abiding, responsible citizens” of Chicago from engaging in target practice in the controlled environment of a firing range. This is a serious encroachment on the right to maintain proficiency in firearm use, an important corollary to the meaningful exercise of the core right to possess firearms for self‐defense. That the City conditions gun possession on range training
is an additional reason to closely scrutinize the range ban. All this suggests that a more rigorous showing than that applied in Skoien should be required, if not quite “strict scrutiny.”

And here is the burden Chicago needs to establish:

To be appropriately respectful of the individual rights at issue in this case, the City bears the burden of establishing a strong public‐interest justification for its ban on range training: The City must establish a close fit between the range ban and the actual public interests it serves, and also that the public’s interests are strong enough to justify so substantial an encumbrance on individual Second Amendment rights. Stated differently, the City must demonstrate that civilian target practice at a firing range creates such genuine and serious risks to public safety that prohibiting range training throughout the city is justified.

Judge Sykes finds that Chicago did not meet this burden (specifically the concerns are speculative, read, ex ante)

At this stage of the proceedings, the City has not come close to satisfying this standard. In the district
court, the City presented no data or expert opinion to support the range ban, so we have no way to evaluate the seriousness of its claimed public‐safety concerns. Indeed, on this record those concerns are entirely speculative and, in any event, can be addressed through sensible zoning and other appropriately tailored regulations. That much is apparent from the testimony of the City’s own
witnesses, particularly Sergeant Bartoli, who testified to several common‐sense range safety measures that could be adopted short of a complete ban.

Specifically concerns about risk of death or injuries are speculative.

The City maintains that firing ranges create the risk of accidental death or injury and attract thieves wanting to steal firearms. But it produced no evidence to establish that these are realistic concerns, much less that they warrant a total prohibition on firing ranges. In the First Amendment context, the government must supply actual, reliable evidence to justify restricting protected expression based on secondary public‐safety effects. By analogy here, the City produced no empirical evidence
whatsoever and rested its entire defense of the range ban on speculation about accidents and theft.

Judge Sykes poo-poos concerns about bullets flying out of mobile shooting ranges, and concerns about “lead residue left on range users’ hands after firing a gun.” Somewhere Justice Breyer is cowering about Lochner.

Sykes finds that Plaintiffs are likely to succeed on the merits (and indeed, probably will).

Perhaps the City can muster sufficient evidence to justify banning firing ranges everywhere in the city, though that seems quite unlikely. As the record comes to us at this stage of the proceedings, the firing‐range ban is wholly out of proportion to the public interests the City claims it serves. Accordingly, the plaintiffs’ Second Amendment claim has a strong likelihood of success on the merits.

Judge Sykes finds the balance of harms tilts towards the Plaintiff.

The remaining consideration for preliminary injunctive relief is the balance of harms. It should be clear from the foregoing discussion that the harms invoked by the City are entirely speculative and in any event may be addressed by more closely tailored regulatory measures. Properly regulated firing ranges open to the public should not pose significant threats to public health and safety. On the other side of the scale, the plaintiffs have established a strong likelihood that they are suffering violations of their Second Amendment rights every day the range ban is in effect. The balance of harms favors the plaintiffs.

Judge Sykes notes that Chicago may still narrowly limit the opening of ranges, with respect to zoning laws.

To the contrary, a preliminary injunction against the range ban does not open the door to a parade of firing‐range horribles. Cf. McDonald, 130 S. Ct. at 3047 (“Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.”). The City may promulgate zoning and safety regulations governing the operation of ranges not inconsistent with the Second Amendment rights of its citizens; the plaintiffs may challenge those regulations, but not based on the terms of this injunction. As for the City’s concern about a “regulatory vacuum” between the issuance of the preliminary injunction and the promulgation of firing‐range zoning and safety regulations, we note that it faced a similar dilemma after the Supreme Court decided McDonald. The sky did not fall. The City Council moved with dispatch and enacted the Ordinance just four days later.

Justice Breyer is screaming about Lochner somewhere.

Wow. This is what I expected in McDonald but didn’t get. I hope this survives en banc.

Judge Rovner, in a witty opening, agrees with the Majority that “the City may not condition gun ownership for self‐defense in the home on a prerequisite that the City renders impossible to fulfill within the City limits.”

Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits.1 This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court. The effect of the ordinance is another complete ban on gun ownership within City limits. That residents may travel outside the jurisdiction to fulfill the training requirement is irrelevant to the validity of the ordinance inside the City. In this I agree with the majority: given the framework of Dist. of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald, the City may not condition gun ownership for self‐defense in the home on a prerequisite that the City renders impossible to fulfill within the City limits.

Judge Rovner addresses the public interests, and finds in favor of Plaintiffs

Public safety interests apply on both sides of the balance: there are obvious safety risks associated with operating live shooting ranges (more on that later), but there are perhaps equally compelling safety interests in ensuring that gun owners possess the skills necessary to handle their weapons safely. On the record as it currently stands, the district court should have enjoined that part of the ordinance banning all live ranges within City limits. For that reason, I concur in the judgment.

Rovner writes separately with respect to the majority’s adopting of strict scrutiny.

I write separately because the majority adopts a standard of review on the range ban that is more stringent than is justified by the text or the history of the Second Amendment. Although the majority characterizes this aspect of the ordinance as a complete ban on an activity “implicating the core of the Second Amendment right,” a more accurate characterization would be a regulation in training, an area ancillary to a core right. Ante, at 45. A right to maintain proficiency in firearms handling is not the same as the right to practice at a live gun range. As such, I cannot agree that “a more rigorous showing than that applied in Skoien, should be required, if not quite ‘strict scrutiny.’ ” Ante, at 46. Skoien required the government to demonstrate that the statute at issue served an “important government objective,” and that there was a “substantial relationship” between the challenged legislation and that objective

Rovner also looks to “time, place, and manner” as an analogue.

The “time, place and manner” framework of the First Amendment seems well‐suited to the regulation of live‐range training within a densely populated urban area. A complete ban on live‐range training in Chicago, of course, likely would not survive under the intermediate scrutiny applied to restrictions on time, place and manner, especially because the City itself concedes the importance of this training to the safe operation of firearms for self‐defense in the home. Indeed, the City allows ranges to operate in some of the most densely populated parts of the City, albeit strictly for the use of law enforcement and trained security personnel. The majority purports to distinguish time, place and manner restrictions and other regulations on the grounds that the City’s ordinance is a complete ban, but the ban on live ranges affects only one aspect of firearms training. The intermediate scrutiny applied to time, place and manner restrictions is both adequate and appropriate in these circumstances.

Rovner turns the analogy to the First Amendment on its head, by comparing shouting fire in a theater to carrying a tinder box in a crowded city.

Finally, that some of those early laws were concerned with fire suppression does not mean that they are irrelevant to our analysis today. On the contrary, these laws inform us that public safety was a paramount value to our ancestors, a value that, in some circumstances, trumped the Second Amendment right to discharge a firearm in a particular place. Analogizing to the First Amendment context, a categorical limit is sometimes appropriate, as in the case of bans on obscenity, defamation, and incitement to crime. See Skoien, 614 F.3d at 641. In the same way that a person may not with impunity cry out “Fire!” in a crowded theater, a person in 18th century New York, and 19th century Chicago and New Orleans could not fire a gun in the tinder boxes that these cities had become. See Footnote 14 above. If we are to acknowledge the historical context and the values of the period when the Second and Fourteenth Amendments were adopted, then we must accept and apply the full
understanding of the citizenry at that time. In the instance of firearms ordinances which concerned themselves with fire safety, we must acknowledge that public safety was seen to supercede gun rights at times. Although fire is no longer the primary public safety concern when firearms are discharged within City limits, historical context tells us that cities may take public safety into account in setting reasonable time, place and manner restrictions on the discharge of firearms within City limits.

Rovner also questions the City’s dismissal of the City’s concerns for public safety (Justice Breyer is cheering!), calling it naïve.

The majority’s summary dismissal of the City’s concern for public safety related to live gun ranges is to my mind naive. One need only perform a simple internet search on “gun range accidents” to see the myriad ways that gun owners manage to shoot themselves and others while practicing in these supposedly safe environments. From dropping a loaded gun in a parking lot to losing control of
a strong weapon on recoil, gun owners have caused considerable damage to themselves and others at live gun ranges. To say that the City’s concerns for safety are “entirely speculative” is unfounded. Ante, at 46. At this stage of the litigation, the City has not yet had an opportunity to develop a full record on the safety issues raised by placing live gun ranges in an urban environment. Common sense
tells us that guns are inherently dangerous; responsible gun owners treat them with great care. Unfortunately, not all gun owners are responsible. The City has a right to impose reasonable time, place and manner restrictions on the operation of live ranges in the interest of public safety and other legitimate governmental concerns.

Rovner’s conclusion is telling in its truthiness

The ordinance admittedly was designed to make gun ownership as difficult as possible. The City has legitimate, indeed overwhelming, concerns about the prevalence of gun violence within City limits. But the Supreme Court has now spoken in Heller and McDonald on the Second Amendment right to possess a gun in the home for selfdefense and the City must come to terms with that reality.
Any regulation on firearms ownership must respect that right.

In my post about the complaint in Lane v. Holder, I noted that one paragraph in the fact section focused exclusive on how the plaintiff was not dangerous:

7. Michelle Lane is over the age of 21, is not under indictment, has never beenconvicted of a felony or misdemeanor crime of domestic violence, is not a fugitive from justice,is not an unlawful user of or addicted to any controlled substance, has not been adjudicated amental defective or committed to a mental institution, has not been discharged from the ArmedForces under dishonorable conditions, has never renounced her citizenship, and has never been the subject of a restraining order relating to a child or an intimate partner. Ms. Lane holds a validUtah permit to carry a handgun, which is recognized in numerous states.

As I argue in The Constitutionality of Social Cost, these questions cut directly to the heart of what I view as undergirding all Second Amendment questions–will this firearm wind up in the hands of someone dangerous who can harm others. Ms. Lane’s history suggests that she is not such a person with a propensity for violence.

Commenter PT noted that these questions effectively spell out the answers to the Firearm Transactions Record, or Form 4473, a form that must be filled out before anyone purchases a firearm from a Federal Firearm License holder. Indeed, question 12 speaks directly to these elements.

• Are you under an indictment for a felony–whether violent or not? (For my thoughts of whether this restriction is constitutional post Heller, see here).
• Have you ever been convicted of a felony–whether violent or not?
• Are you a fugitive from justice?
• Are you an abuser of an illegal drug? Presumably, people who use drugs break other laws, and pose a risk of harm to others.
• Those adjudged mentally defective are among the people that Heller indicated received limited constitutional protections for the Second Amendment.
• People subject to a restraining order are certainly those that are at risk of harming others.
• Questions about violent misdemeanors was at issue in Skoien.

Some of these questions focus on dangerousness. Some do not. People convicted, or even indicted, for non-violent offenses, are in the same boat as those who commit violent felonies. For this reason, I suggest bifurcating second amendment challenges.

Second Amendment challenges 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 demonstrated 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 appropriate.

The questions in this form are a weak proxy for ascertaining whether a person would be dangerous and pose harm to others if he or she obtained a firearm. These are the questions of the constitutionality of social cost.

Update: Tom Huff emailed me, and informed me that the statutory authority for these questions is 18 U.S.C. 922(g):

(g) It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

(2) who is a fugitive from justice;

(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;

(5) who, being an alien—

(A) is illegally or unlawfully in the United States; or

(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));

(6) who has been discharged from the Armed Forces under dishonorable conditions;

(7) who, having been a citizen of the United States, has renounced his citizenship;

(8) who is subject to a court order that—

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)

(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or

(9) who has been convicted in any court of a misdemeanor crime of domestic violence,

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The 9th Circuit issued an opinion in Nordyke v. King, deciding that the Second Amendment does not protect the right of the Nordykes to hold a gun show on county fairgrounds. H/T Eugene Volokh. I will update this post as I make my way through the opinion.

Judge O’Scannlain, who wrote the opinion the Supreme Court considered in McDonald, began his discussion of the standard of review:

Because the Supreme Court has yet to articulate a standardof review in Second Amendment cases, that task falls tothe courts of appeals and the district courts. It has been suggestedthat only regulations which substantially burden theright to keep and to bear arms should receive heightened scrutiny.See United States v. Masciandaro, ___ F.3d ___, 2011WL 1053618, at *11 (4th Cir. 2011); United States v. Chester,628 F.3d 673, 680-83 (4th Cir. 2010); United States v. Marzzarella,614 F.3d 85, 89 (3d Cir. 2010); Heller v. District ofColumbia, 698 F. Supp. 2d 179, 188 (D.D.C. 2010). Othercourts would apply strict scrutiny to all gun-control regulations.See United States v. Engstrum, 609 F. Supp. 2d 1227,1231-32 (D. Utah 2009).6

FN6- We recently upheld the constitutionality of 18 U.S.C. § 924(c)(1)(A),which criminalizes the possession of a gun in furtherance of a drug crime,against a Second Amendment challenge. See United States v. Potter, 630F.3d 1260 (9th Cir. 2011). But we declined to adopt a standard of reviewfor Second Amendment analysis in that case.

This may be potentially significant, in that it suggests that certain violent crimes (possession of a gun in furtherance of a drug crime) is held to a different standard of scrutiny. This mirrors my proposal in The Constitutionality of Social Cost to bifurcate Second Amendment challenges based on the actor’s propensity to harm others.

The Court bases its analysis on the “substantial burden” elements from Heller and McDonald, which mirrors Eugene Volokh’s article:

The Supreme Court’s reasoning in Heller and McDonald suggests that heightened scrutiny does not apply unless a regulation substantially burdens the right to keep and to bear arms for self-defense.

Next O’Scannlain rejected the application of strict scrutiny. The following passage, which I need to parse closely, closely related to my work on social cost. No citation here, but there may as well have been:

Conversely, applying strict scrutiny to every gun-control regulation would be inconsistent with Heller’s reasoning. Under the strict scrutiny approach, a court would have to determine whether each challenged gun-control regulation is narrowly tailored to a compelling governmental interest (presumably, the interest in reducing gun crime). But Heller specifically renounced an approach that would base the constitutionality of gun-control regulations on judicial estimations
of the extent to which each regulation is likely to reduce such crime.

A few points here. First, O’Scannlain expressly rejects strict scrutiny. This parallels Justice Breyer’s dissent which rejected strict scrutiny. As I noted:

Breyer finds that the “adoption of a true strict-scrutiny standard for evaluating gun regulations would be impossible.” In light of the fact that “almost every gun-control regulation will seek to advance (as the one here does) a ‘primary concern of every government—a concern for the safety and indeed the lives of its citizens.’”33 Indeed, “the Government’s general interest in preventing crime” is “compelling.”34

Here we see a lower court citing Scalia, but embracing Breyer.

Second, O’Scannlain writes what is implicit in Heller and McDonald. The key interest is reducing harm that may result from exercising the Second Amendment, what he dubs quite simply “gun crime,”—or as I call it, the constitutionality of social cost.

Third, Heller did not “renounced an approach that would base the constitutionality of gun-control regulations on judicial estimations of the extent to which each regulation is likely to reduce such crime.” They did so implicitly through the pragmatic Dicta about “sensitive places” and “long-standing prohibitions.” As I demonstrate in my article, these are limitations based purely on a social cost calculus, and require the “judicial estimations of the extent to which each regulation is likely to reduce such crime.”

O’Scannlain continued:

Indeed, the Heller majority rejected Justice Breyer’s proposed “interest-balancing” test that would ask “whether the statute burdens a protected interest . . . out of proportion to the statute’s salutary effects upon other important governmental interests.” Id. at 689-90 (Breyer, J., dissenting). The problem with Justice Breyer’s test was not that it would require judges to determine the burden that gun-control regulations impose on the right to keep and to bear arms; indeed, as demonstrated above, the Heller majority engaged in just that analysis.

Precisely. The Heller and McDonald majorities purported to reject an interest-balancing approach, yet that is precisely what they did.

Rather, the majority rejected such test because it would allow judges to constrict the scope of the Second Amendment in situations where they believe the right is too dangerous. See id. at 634 (majority opinion) (“The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.”); id. (“A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.”). But applying strict scrutiny to every gun-control regulation would require courts routinely to make precisely those types of government interest assessments.

I concur that the McDonald Court purported to eschew social cost as a factor to consider, but as I write at some length in my article, that is precisely what they did. Further, this passage is somewhat confusing. Strict scrutiny would require Judges to make these determinations; but intermediate scrutiny or substantial burden analysis would not? Why is intermediate scrutiny any better? The only difference, as far as I can tell, is the state has less of a burden, and the plaintiff has a greater burden to show unconstitutionality.

This passage is absolutely key:

Just as important as what Heller said about a government-interest approach is what Heller did not say. Nowhere did it suggest that some regulations might be permissible based on the extent to which the regulation furthered the government’s interest in preventing crime. Instead, Heller
sorted such regulations based on the burden they imposed on the right to keep and to bear arms for self-defense.

I think O’Scannlain’s reading of Heller is generous, but his analysis mirrors Volokh’s substantial burden test. Heller did not “suggest that some regulations might be permissible based on the extent to which the regulation furthered the government’s interest in preventing crime,” but it implicitly left that topic open. I’m glad to see O’Scannlain close that “loophole” (no gun show pun intended).

Accordingly, the Court adopted a “substantial burden framework”:

We are satisfied that a substantial burden framework will prove to be far more judicially manageable than an approach that would reflexively apply strict scrutiny to all gun-control laws. As McDonald recognized, “assess[ing] the costs and benefits of firearms restrictions” requires “difficult empirical judgments in an area in which [judges] lack expertise.” 130 S. Ct. at 3050. Indeed, whether a gun-control regulation serves the government’s interest in safety is likely to be a dif- ficult question to answer. See Heller, 554 U.S. at 702 (Breyer, J., dissenting) (“[E]mpirically based arguments . . . cannot prove either that handgun possession diminishes crime or that handgun bans are ineffective.”); Volokh, supra, at 1461 (arguing that it “is likely to be especially hard” to “estimate the effectiveness of [a gun-control] law in preventing future crime and injury”).

In O’Scannlain’s discussion about strict scrutiny, he notes that it will be difficult to determine if a regulation “is likely to be effective” is difficult. This supports my contention that many rationales for gun control regulations are ex ante, rather than ex poste, in that they require a deprivation of liberty before any danger in order to mitigate some potential future harm:

Applying strict scrutiny to every gun regulation would require courts to assess the effectiveness of a myriad of guncontrol laws. Whenever a law is challenged under the Second Amendment, the government is likely to claim that the law serves its interest in reducing crime. See, e.g., Defs.’ Br. at 19 (asserting that the Ordinance serves the County’s interest in “minimiz[ing] the risk of shootings”). Because the Supreme Court has already held that “the Government’s general interest in preventing crime” is “compelling,” United States v. Salerno, 481 U.S. 739, 754 (1987), the question, under strict scrutiny, would be whether the regulation is narrowly tailored
to that interest. But courts cannot determine whether a guncontrol regulation is narrowly tailored to the prevention of crime without deciding whether the regulation is likely to be effective (or, at least, whether less burdensome regulations would be as effective). Sorting gun-control egulations based on their likely effectiveness is a task better fit for the legislature. Cf. Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 Harv. L. Rev. 1274, 1291 (2006) (“A test may be deemed judicially unmanageable if it would require courts to make empirical findings or predictive judgments for which they lack competence.”).

As I noted in my article, these citations to Salerno are somewhat inapt in that these gun control laws represent ax ante deprivations of liberty without any showing of harm.

The Court distinguishes the “substantial burden” rest from strict scrutiny, noting that it “will not produce nearly as many difficult empirical questions as strict scrutiny.”

By contrast, the substantial burden test, though hardly mechanical, will not produce nearly as many difficult empirical questions as strict scrutiny. See Volokh, supra, at 1459-60 (arguing that it is easier to determine whether a law substantially burdens the right to bear arms than to figure out whether a law “will reduce the danger of gun crime”). Indeed, courts make similar determinations in other constitutional contexts. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (holding that pre-viability abortion regulations are unconstitutional if they impose an “undue burden” on a women’s right to terminate her pregnancy); Clark v. Cmty. For Creative Non-Violence, 468 U.S. 288, 293 (1984) (stating that content-neutral speech regulations are unconstitutional if they do not “leave open ample alternative channels for communication”). Courts can use the doctrines generated in these related contexts for guidance in determining whether a guncontrol regulation is impermissibly burdensome, as we suggest
below.

I concur, and argued that the Court’s show look elsewhere, and not just to First Amendment contexts, to shape our Second Amendment jurisprudence. Courts make tough “determinations in other constitutional contexts.” The Bill of Rights should be viewed as a whole.

In sum, the Court found that a “substantial burden” test applies, but declined to find what would substantially burden Second Amendment rights.

Accordingly, we hold that only regulations which substantially burden the right to keep and to bear arms trigger heightened scrutiny under the Second Amendment.9

FN9- 9We need not decide today precisely what type of heightened scrutiny applies to laws that substantially burden Second Amendment rights

Here is how the Court phrases the question:

Thus, the proper inquiry is whether a ban on gun shows at the county fairgrounds substantially burdens the right to keep and to bear arms; not whether a county can ban all people from carrying firearms on all of its property for any purpose.

The Court first looks to see if the state “leaves open sufficient alternative avenues for obtaining the good or service,” comparing it to an analysis of restriction on the time, place, or manner of protected speech will ask whether the restriction “leave[s] open ample alternative channels for communication of the information.”” Ward, 491 U.S. at 791.The Court also looks to abortion jurisprudence:

Likewise, the Supreme Court recently held that a ban on one particular method of performing an abortion did not constitute an “undue burden” on the right to an abortion in part because “[a]lternatives [were] available to the prohibited procedure.” Carhart, 550 U.S. at 164; see also id. at 165 (“[T]he Act allows . . . a commonly used and generally accepted [abortion] method, so it does not construct a substantial obstacle to the abortion right.”).

Phrased in terms of the Second Amendment:

Following this lead, when deciding whether a restriction on gun sales substantially burdens Second Amendment rights, we should ask whether the restriction leaves lawabiding citizens with reasonable alternative means for obtaining firearms sufficient for self-defense purposes.

In light of the fact that the original Nordyke complaint was filed in 2004, before our entire Second Amendment jurisprudence was created, plaintiffs will have the opportunity to amend.

O’Scannlain addresses Judge Gould’s dissent:

Judge Gould respectfully disagrees with the substantial burden framework that we adopt today. Instead, he would “subject to heightened scrutiny only arms regulations falling within the core purposes of the Second Amendment.” Concur. at 5659. All other gun-control regulations would trigger only “reasonableness review.” Id. Depending on how one reads Judge Gould’s framework, we suggest that it is either equivalent to the approach we adopt today, or inconsistent with the Supreme Court’s decisions in Heller and McDonald.

This is similar to the approach Breyer proposed, and mirrors the scholarship of Joseph Blocher.

O’Scannlain makes an important point, one that I have stressed throughout—the distance between the majority and dissenting opinions can be blurred quite easily.

On one reading, Judge Gould’s approach is roughly the same as our own. After all, it is not initially clear how determining whether a regulation “substantially burdens the right to keep and to bear arms” is different from determining whether the regulation “fall[s] within the core purposes of the Second Amendment.” Both approaches would require a court to determine the extent to which a regulation interferes with the right to keep and to bear arms, and both would apply heightened scrutiny only to regulations whose interference with the right reaches a certain threshold.

The Court notes that “almost every gun-control regulation—even those amounting to de facto gun bans—is rationally related to the government’s legitimate interest in reducing gun crime.”

O’Scannlain, in a footnote, cites to Easterbrook’s language about the “presumptively lawful” dicta:

Judge Gould focuses on the footnote’s reference to “presumptively lawful regulations,” reading it to mean “regulations that will command only rationality review.” Concur. at 5661. We believe it most unlikely that, in a one-sentence footnote, the Supreme Court would undermine the rest of
its analysis by declaring, inter alia, that all gun sales regulations, no matter how burdensome, should receive the rubber stamp of rational basis review. Instead, we read “presumptively lawful regulations” to mean “regulations which we presume will survive constitutional scrutiny,” and to say nothing about what standard of review should be applied to them. This reading fits with the context in which the remark was made: cautioning readers against overreading the opinion. As Judge Easterbrook put it, this section of Heller is merely “precautionary language” that “warns readers not to treat Heller as containing broader holdings than the Court set out to establish.” United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010).

Props to Adam Winkler on a number of citations, though I question the continued vitality of these references to pre-Heller reasonableness inquiries:

Justice Alito reiterated in McDonald that the states would be permitted to “‘experiment[]with reasonable firearms regulations under the Second Amendment.’”355 Adam Winkler’s learned article ____, written two years before Heller, has been cited in both Heller and McDonald by the dissenting Justices to identify the manner in which the states have regulated firearms. These precedents are relevant for historical purposes, perhaps, but to the extent that they conflict with the core holding of Heller, and they recognize an individual right to keep and bear arms, I question their sustained validity. For example, if a state viewed the right to keep and bear arms as a collective right, and premised its “reasonable” regulations on that notion, then those regulations, even if longstanding, are unconstitutional. Why should they receive extra
protection solely because of their early vintage?
If “reasonable firearms regulations” are those that comply with the Court’s recognition of the Second Amendment in Heller and McDonald as an individual right, then I have no objection. But if these regulations are “reasonable” because they are “longstanding”—that is, they are constitutional merely because they predated the Court’s recognition of the Second Amendment
as an individual right, then Alito’s opinion seeks to protect potentially-unconstitutional laws simply because they are old, and people have grown to rely on them.