The Court after Scalia: The next “conservative” Justice may not save the Second Amendment

Alan Gura is an attorney at Gura PLLC and an adjunct professor of law at Georgetown University Law Center. He served as counsel for the plaintiffs in District of Columbia v. Heller and McDonald v. City of Chicago.

A sober assessment of the Second Amendment’s present status must precede any attempt at predicting a “conservative” Supreme Court nominee’s impact on the Second Amendment’s future. Well before Justice Antonin Scalia’s passing, judges figured out that District of Columbia v. Heller and McDonald v. City of Chicago are optional precedents. For all their powerful content, these decisions have in practice proven meaningless in the face of near-total resistance throughout the federal courts, in combination with the transparent lack of interest at One First Street in defending the Supreme Court’s eponymous position atop the judicial hierarchy. To be sure, some judges seek to apply Heller and McDonald in resolving Second Amendment disputes. But most treat the Supreme Court’s precedent as a hassle to surmount before rubber-stamping any legislative restriction on the right to bear arms. If not today, then very soon, it shouldn’t be too hard for any sufficiently dedicated and creative legislature to effectively ban firearms or just about any firearm-related activity, without worrying much about Heller. Appointing one “conservative” Justice to replace Antonin Scalia won’t improve matters. Indeed, “conservative” judges are part of the problem.

The Second Amendment’s sad condition is not imagined by gun rights advocates. Four years have passed since UMKC law professor Allen Rostron, a former Brady Center attorney, noted that Justice Stephen Breyer’s Heller dissent was proving to be the case’s controlling opinion. As Rostron saw it, the lower courts “have effectively embraced the sort of interest-balancing approach that Justice Scalia condemned,” under which even complete bans on possessing handguns and functional firearms at home would survive an alleged Second Amendment right. This year, UCLA law professor Richard Re noted the phenomenon as a positive example of what his article titled “Narrowing Supreme Court Precedent from Below”: “[T]he passage of time has seen Heller’s legacy shrink to the point that it may soon be regarded as mostly symbolic.”

Rostron and Re are onto something. Eight years after the Supreme Court held that the Second Amendment secures an individual right, and six years after it confirmed that the right is “fundamental,” only three times have federal appellate courts definitively struck down any of the nation’s thousands of laws restricting Second Amendment rights. The first of these saw the demise of Chicago’s ban on the operation of gun ranges, which the city immediately replaced with a byzantine regulatory system effecting the exact same result. Five years after the Seventh Circuit’s decision striking down the range ban in Ezell v. Chicago, no publicly accessible gun ranges operate in America’s third largest city, and we await the outcome of last November’s argument in Ezell 2. The Seventh Circuit’s decision in Moore v. Madigan, striking down Illinois’s flat ban on bearing arms, survived en banc rehearing by a five-to-four vote, the dissenters offering so many exceptions to the right they would not acknowledge as would render it worse than useless. Who knew that “sensitive places” from which a “right” to carry guns may be barred extend to “areas around . . . forests?” The D.C. Circuit did strike down some minor firearm registration requirements, but has largely left the city’s pervasive scheme in place.

More recently, a Ninth Circuit panel majority reinstated a complaint alleging that zoning gun stores out of existence implicates Second Amendment rights. After all, unlike gun stores, adult bookstores and theaters are acknowledged to have “secondary effects” on their neighbors, yet these retain a First Amendment defense against zoning laws targeting their core function. But an astonishing array of liberal amici support rehearing, echoing arguments advanced elsewhere by the U.S. Department of Justice: the right to keep guns does not include a corollary right to acquire guns. (In case the reader wonders, some of the same groups, and the government, elsewhere resist a right to make the guns that one has the fundamental right to possess, but not acquire.) Chicago chose not to appeal a 2014 district court decision striking down that city’s total gun store prohibition, but would it make the same calculation now?

Of course, this is not how fundamental rights operate in America. The right to make family planning decisions is not the right to practice the rhythm method, or the right to make one’s own birth control pills and devices in the garage. Nor is the right to have an abortion the right to use a wire hanger on oneself. These rights were pioneered and maintained by doctors, pharmacists, clinics, and retailers who provide their products and services to others in exchange for money. But then, as the Fourth Circuit once explained, precedent confirming abortion rights’ advocates standing to access federal courts cannot be applied in a Second Amendment case because in the abortion case, “the challenged law . . . prevented the plaintiff from exercising a constitutional right.”

Indeed, for every “conservative” judge who would steadfastly defend the right to bear arms, there must be at least three of the more familiar variety of “conservatives” – those for whom the ultimate judicial passion lies in discovering jurisdictional limitations emanating from Article III’s penumbras. If liberal judges may be skeptical of Second Amendment rights, “conservative” judges often appear to find judicial review itself distasteful, and they strain mightily to avoid constitutional disputes.

Some room for common ideological ground may yet exist in Second Amendment-land. Federal courts are proving open to relieving relatively harmless individuals from the effects of generally valid gun prohibitions as circumstances warrant. As liberal jurists are often sensitive to the wanton application of collateral consequences for criminal convictions, the Second Amendment may play a role in reforming our approach to the reintegration of those with criminal convictions.

But meanwhile, in large part, Heller’s promise is growing ever more illusory. Reasonable minds may disagree as to which decision best exemplifies the courts’ abject disdain for Second Amendment rights, but for my money nothing beats the Second Circuit’s opinion in Kwong v. Bloomberg. In Kwong, the court upheld New York City’s $340 triennial fee on home handgun possession (in addition to an initial $94.25 fingerprinting fee) upon finding it “difficult to say that the licensing fee . . . is anything more than a ‘marginal, incremental or even appreciable restraint’ on one’s Second Amendment rights.’” This was so especially because the plaintiffs only asserted, but did not prove, that the fee was prohibitive. Not that it mattered; the court added that even if this $340 fee materially burdened the fundamental right, it would pass “heightened” scrutiny because the fee “is designed to allow the City of New York to recover the costs incurred through operating its licensing scheme, which is designed to promote public safety and prevent gun violence.” No word on whether the Second Circuit would approve of a 34 cent fee for voting or having an abortion, to recoup the costs of wholesome programs aimed at securing the ballot or regulating the medical profession.

Most worrisome is the Supreme Court’s recent decision in Caetano v. Massachusetts, vacating and remanding a Massachusetts high court decision upholding that state’s stun gun ban. In weighing the constitutionality of the District of Columbia’s handgun ban, Heller adopted a “common use” test to measure which “arms” fall within the Second Amendment’s protection; arms passing the test, as handguns do, cannot be banned. In adopting this test, Heller’s majority pointedly rejected Justice Breyer’s dissenting view that an “interest balancing inquiry” should “ask[] whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” But with the Supreme Court turning a blind eye, court after federal appellate court has upheld bans on arms that pass the common use test by holding that such a test merely triggers the application of interest-balancing, which – surprise! – just about any weapons prohibition survives. Indeed, one court upheld a ban on common-use weapons because “[i]f it has no other effect, [the] ordinance may increase the public’s sense of safety.”

In Caetano, the Massachusetts Supreme Judicial Court lost the plot. It upheld the state’s stun gun ban not by employing “interest balancing,” but by reasoning that such weapons did not exist in the eighteenth century and may not have a military application – factors explicitly barred from the common use test. In what Justice Samuel Alito termed a “grudging” per curiam decision, the Supreme Court tersely vacated the lower court’s decision. But it did not strike down the law: it only called for a re-examination, which never came because prosecutors quickly dropped the charges against Ms. Caetano. She better not be caught with another stun gun, as the ban remains on the books. Others are rushing to challenge stun gun bans from coast to coast, but there’s no reason to suppose that their challenges would survive “interest balancing,” or that the Supreme Court would then care.

In sum, the Second Amendment vision pervading federal courts today allows banning any weapon, regardless of its function or popularity, if doing so makes people feel better; the prohibition on bearing arms by anyone unless the local police think it’s a good idea, and in just about any location subject to description by the English language; levying taxes and fees on firearms in any amount, if the money collected is put to a wholesome purpose; and the “heightened scrutiny” of any law implicating “fundamental” Second Amendment rights by deferring to the legislature’s view of what’s constitutional. If the gun prohibitionists get their way, add to this list the final farce of a ban on the acquisition and manufacture of the arms whose possession might be protected.

Perhaps Justice Scalia opposed all this, not just philosophically but enough to do something about it; he couldn’t get four of his “conservative” colleagues along since at least 2010. Another deferential judicial minimalist unenthusiastic about civil rights claims won’t improve matters. At least two more Justices who can overcome any personal political discomfort, and acknowledge both the Second Amendment and their role in enforcing fundamental rights, are required to guarantee the bare minimum of a recognizable right to arms. Unfortunately, given the major party nominees this election, the prospect of seeing even one such Justice confirmed in the next four years could not be closer to zero.