SECOND AMENDMENT

STANDARDS OF REVIEW IN A

HELLER WORLD

Nelson Lund,

George Mason University School of Law

Fordham Urban Law Journal, Forthcoming

George Mason University Law and

Economics Research Paper Series

12-32

† Patrick Henry Professor of Constitutional Law and theSecond Amendment, George Mason University School of Law. Forhelpful comments, I am grateful to Stephen G. Gilles and Mara S.Lund. Research support was provided by George Mason’s Law andEconomics Center.

1 554 U.S. 570 (2008).

Second Amendment Standards of Review in aHeller World

Nelson Lund†

Introduction

For a long time, gun rights advocates have hopedthat the Supreme Court would begin reviewing guncontrol laws under the standard of “strict scrutiny,”which requires the government to demonstrate that itsregulations are narrowly tailored to served a compellinggovernmental interest. Gun control advocates, for theirpart, would prefer “rational basis” review, which requiresthe government only to articulate some legitimatepurpose that the legislature could conceivably havesought to serve with its regulations.

In District of Columbia v. Heller,1 the seminal caseinvolving a general ban on the possession by civilians ofany handgun or other operable firearm, the UnitedStates urged the Court to adopt a standard of“intermediate scrutiny.” Relying primarily on a First

2 Brief for the United States, at 8.

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Amendment free speech case upholding a ban on write-in voting, the federal government urged the Court toremand the case with instructions to balance the degreeof the burden on constitutionally protected conductagainst the strength of the government’s regulatoryinterests.2 When the Solicitor General pressed this pointat oral argument, Chief Justice Roberts expressed hisskepticism:

Well, these various phrases under thedifferent standards that are proposed,“compelling interest,” “significant interest,”“narrowly tailored,” none of them appear inthe Constitution; and I wonder why in thiscase we have to articulate an all-encompassing standard. Isn’t it enough todetermine the scope of the existing rightthat the amendment refers to, look at thevarious regulations that were available atthe time, including you can’t take the gun tothe marketplace and all that, and determinehow these — how this restriction and thescope of this right looks in relation to those?

I’m not sure why we have to articulatesome very intricate standard. I mean, thesestandards that apply in the FirstAmendment just kind of developed over theyears as sort of baggage that the FirstAmendment picked up. But I don’t knowwhy when we are starting afresh, we would

3 Tr. of Oral Argument, at 44.

4 “Constitutional rights are enshrined with the scope theywere understood to have when the people adopted them, whether ornot future legislatures or (yes) even future judges think that scopetoo broad.” Heller, 554 U.S. at 634-35.

5 Id. at 628-29.

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try to articulate a whole standard thatwould apply in every case?3

When the Court issued its opinion in Heller,Justice Scalia’s majority opinion rather pointedlydeclined “to articulate some very intricate standard.” Butneither did the Court adopt the approach that ChiefJustice Roberts seemed to favor at oral argument.Notwithstanding the opinion’s extended examination ofthe historical record before and after the ratification ofthe Second Amendment, it did not “determine the scopeof the existing right that the amendment refers to.” TheChief Justice was clearly referring to the scope of theright to arms as it was understood in 1791, and theCourt’s opinion does pay lip service to that standard.4

But this was not the basis for the decision. Instead,Heller rejected the handgun ban because it constituteda prohibition on an entire class of arms that isoverwhelmingly chosen for self defense by Americansociety today.5 The Court then removed any doubt aboutits rejection of Chief Justice Roberts’ suggestion byendorsing a wide range of gun control regulations thathad no analogues in 1791.

Had the Court simply evaluated the D.C. handgun

6 William Blackstone, 4 Commentaries *148-49. For adiscussion of American authorities acknowledging, and in somecases qualifying, this common law rule, see Nelson Lund, TheSecond Amendment, Heller, and Originalist Jurisprudence, 56 UCLAL. Rev. 1343, 1362-64 (2009).

7 See Heller, 554 U.S. at 631-34.

8 There were, of course, also many laws requiring citizens toarm themselves in connection with their militia duties. These lawsimply nothing about the scope of the government’s authority toforbid citizens to arm themselves as they choose in everyday life.

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ban by comparing it with the various regulations thatexisted in 1791, it might have been a very easy case.Nothing remotely resembling a ban on handguns existedat that time, before that time, or for a long timeafterward. But the same could be said about almost allof the modern forms of gun control, for there were veryfew restrictions of any kind on the private possession ofarms during the founding era. The common lawprohibited private citizens from terrifying the public bygoing armed in public with dangerous and unusualweapons.6 A few jurisdictions had adopted safetyregulations involving the storage of highly flammablegunpowder or the irresponsible discharge of weapons.7

But that’s about it.8

The problem with the approach suggested by theChief Justice is that the paucity of gun controlregulations in 1791 does not necessarily imply that theSecond Amendment was meant to proscribe allregulations except those resembling laws that hadalready been adopted. The Amendment might have been

9 See Lund, supra note 6, at 1353-55, 1368-69.

10 See Tr. of Oral Argument at 44 (quoted above); Heller, 554U.S. at 592.

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meant to prevent the federal government from overridingor supplementing state decisions about gun control, butit is highly implausible that it was meant to forbidCongress from imposing regulations in the District ofColumbia and the territories that went beyond what thestates had chosen to impose on their own citizens.9

In 1791, American citizens had an almostunlimited right to arms by virtue of the fact thatlegislatures had chosen to impose almost no regulations.Such inaction did not debar legislatures from alteringtheir citizens’ rights in the future. What Chief JusticeRoberts and Justice Scalia call, respectively, the“existing” or “pre-existing” right constitutionalized by theSecond Amendment10 would therefore have to beunderstood as protecting whatever individual freedomlegislatures were obliged to respect. But we havevirtually no historical evidence about the scope of thatright because it had not become a matter of publiccontroversy.

Faced with the impossibility of actually adoptingthe straightforward approach suggested by the ChiefJustice at oral argument, the Court was nonethelessunwilling to adopt “an all-encompassing standard” likestrict or intermediate scrutiny. Heller did expressly rejectthe rational basis test, and it held a ban on the

11 554 U.S. at 628-29 & n.27, 635.

12 For a detailed discussion, see Lund, supra note 6, at1356-67.

13 554 U.S. at 630.

14 130 S. Ct. 3020 (2010).

15 McDonald reviewed a handgun ban that was almostidentical to the one at issue in Heller. The McDonald plurality

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possession of handguns in the home unconstitutional.11

The opinion also endorsed several forms of gun controlin dicta, but without offering any very clear indication ofwhy the Court regarded these regulations asconstitutionally permissible.12 Beyond that, the Courtprovided little guidance, and virtually no clear guidance.

Heller might have been regarded as an exercise injudicial restraint if it had simply invalidated the D.C. lawon the ground that it severely compromised what theCourt called “the core lawful purpose of self-defense.”13

Unfortunately, the opinion’s approval of variousregulations not at issue in the case, combined with itslackadaisical reasoning in support of its variousconclusions, created a mist of uncertainty andambiguity.

After McDonald v. City of Chicago14 applied theSecond Amendment to the states, the need for aworkable framework of analysis became more acutebecause state and local gun control laws are far morenumerous and diverse than federal regulations.15

opinion concluded that the Fourteenth Amendment’s Due ProcessClause makes the Second Amendment applicable to the states in thesame way that it applies to the federal government under Heller,whatever exactly that may be. Justice Thomas’ concurring opinionrelied on the Privileges or Immunities Clause, and left open thepossibility that the Fourteenth Amendment right to arms might havea somewhat different scope than the Second Amendment, butThomas made no definitive statement on that issue.

16 See Heller II, slip op. at 13-14. (citing cases). The NinthCircuit appears to have taken the most distinctive approach.Drawing heavily from the Supreme Court’s abortion jurisprudence,that court held that only regulations that substantially burden theright to keep and bear arms trigger heightened scrutiny, and leftopen the type of heightened scrutiny that will be applied. Nordykev. King, 614 F.3d 776, 784-786 & n.9. (9th Cir. 2011).

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Somewhat surprisingly, perhaps, the federal courts ofappeals have quickly and fairly uniformly coalescedaround an interpretation of Heller that provides such aframework.16 The consensus that has emerged can beroughly summarized as follows:

C Some regulations, primarily those that are“longstanding,” are presumed not to infringe theright protected by the Second Amendment.

C Regulations that substantially restrict the coreright of self defense are subject to strict scrutiny.

C Regulations that do not severely restrict the coreright are subject to intermediate scrutiny.

This framework is closely analogous to what ChiefJustice Roberts called “these standards that apply in the

17 554 U.S. at 628-29.

18 See id. at 582, 595, 635.

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First Amendment[, which] just kind of developed over theyears as sort of baggage that the First Amendmentpicked up.” The Heller Court seems to have self-consciously refrained from adopting such a framework,but neither did it specify any alternative.

The inferior courts have not enjoyed the luxury ofconfining their rulings to anomalous laws aimed atdisarming the civilian population, which Heller saidwould be invalid “[u]nder any of the standards ofscrutiny that we have applied to enumeratedconstitutional rights.”17 Faced with harder cases, andwith the fogginess of the Heller opinion, the inferiorcourts have understandably reached for a frameworkresembling the familiar “baggage” picked up by the FirstAmendment. Heller at least encouraged this approach byits repeated references and analogies to the FirstAmendment and to First Amendment case law.18

We might therefore expect Second Amendmentjurisprudence to continue developing through theapplication of this model. Maybe it will. But a strongchallenge to the model was recently advanced in adissenting opinion by Judge Brett Kavanaugh of the D.C.Circuit, who claims that a very different approach isdictated by Justice Scalia’s majority opinion in Heller. Itis therefore worth considering the differences betweenJudge Kavanaugh’s approach and the one adopted bythe D.C. Circuit and other courts of appeals.

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I conclude that the analytical framework in themajority opinion is superior to Judge Kavanaugh’s. Themajority, however, misapplied its framework. A variationon that framework adopted and applied by the SeventhCircuit illustrates how the inferior courts shouldapproach novel Second Amendment issues.

I. Heller II

Prior to 2008, the District of Columbia had soughtthrough its laws to effect an almost completedisarmament of the civilian population. The Hellerplaintiffs attacked only what they saw as the mostvulnerable regulation, namely the ban on possessing ahandgun or any other operable firearm in the home.After their victory, the D.C. government went back to thedrawing board in an effort to restrict civilian access toguns as much as possible in light of Heller. In Heller II,the named plaintiff in that case, along with otherindividuals, challenged several provisions of the city’srevised gun control laws.

The plaintiffs in Heller II challenged three mainelements of the D.C. gun control regime:

C A requirement that gun owners register each oftheir firearms with the government. The registrantis required to submit detailed information abouthimself and the weapon, and renew theregistration every three years. Citizens areforbidden to register more than one pistol in any30-day period.

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C Every applicant for registration must in effect belicensed to register by passing a series of tests,attending a training course, and beingfingerprinted and photographed.

C D.C. also prohibits a wide range of semi-automaticfirearms, as well as any magazine with a capacityof more than 10 rounds.

A. The Majority Opinion

In an opinion written by Judge Douglas Ginsburg,the court provided the following analysis andconclusions:

C The basic registration requirement, as applied tohandguns but not long guns, is similar tolongstanding regulations that are presumptivelyconstitutional, and the plaintiffs failed to overcomethis presumption by showing that the requirementhas more than a de minimis effect on their rights.

C Some of the particular registration requirements,such as the 30-day rule for registering handgunsand a requirement for ballistic testing of pistols,are novel rather than longstanding, and aretherefore subject to additional scrutiny. The courtreached the same conclusion about the licensingrequirements and about all of the registration andlicensing requirements for long guns.

Relying largely on First Amendment free speech

19 Slip op. at 22 (citing Turner Broad. Sys., Inc. v. FCC, 512U.S. 622, 661 (1994)).

20 Slip op. at 24 (citing Clark v. Jeter, 486 U.S. 456, 461(1988)).

21 The court refused to consider issues involving semi-automatic pistols and shotguns on the ground that none of theplaintiffs had tried to register such weapons.

22 554 U.S. at 624, 627. This might be understood as acorollary or variation of the Court’s presumption that long-standingregulations are constitutional. It was presented, however, as an

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decisions, the court concluded that none of theserequirements imposes “a substantial burden uponthe core right of self-defense,” and that strictscrutiny is therefore inappropriate.19 Instead, thecourt concluded that intermediate scrutiny shouldbe applied, requiring the government to show thatthe regulations are “substantially related to animportant governmental objective.”20 Finding thatthe record was insufficient to apply this standardof scrutiny, the court remanded for furtherproceedings.

C The court declined to decide whether semi-automatic rifles and large capacity magazinesreceive any protection at all under the SecondAmendment.21 The Supreme Court’s Hellerdecision had created a special rule under whichthe Second Amendment does not protect thoseweapons that are not “in common use at the[present] time” for lawful purposes like self-defense.22 The Heller II majority concluded that

interpretation of United States v. Miller, 307 U.S. 174 (1939). As ithappens, Heller’s interpretation of Miller is utter nonsense. JusticeScalia misstated the facts of the case, and interpreted its holding tomean the opposite of what it said. For a detailed analysis, see NelsonLund, Heller and Second Amendment Precedent, 13 Lewis & Clark L.Rev. 335 (2009).

The slip opinion in Heller said that Miller had “upheld . . .convictions” under a federal statute. That is indisputably untrue, forthere were no convictions in the case. The preliminary print of theU.S. Reports attempts to correct the error by changing the word“convictions” to “an indictment.” The new statement is also untrue.Miller reviewed the dismissal of an indictment, and remanded thecase for the district court to reconsider its validity in light of theappropriate legal test. The Miller opinion made it clear that it wasquite possible that the proper application of this test might result inthe district court again dismissing the indictment. See 307 U.S. at178. The indictment was therefore not “upheld.” (The Hellerdissenters made the same mistake as the majority in the slipopinion and have included the same attempt at a correction in thepreliminary print.) It remains to be seen whether the final version ofthe U.S. Reports will reflect yet another effort to describe the factsin Miller accurately. Even if it does, it cannot change the fact thatnobody on the Heller Court seems to have actually read the veryshort Miller opinion, or the fact that Heller read Miller’s holding tomean the opposite of what it says.

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these weapons are commonly owned, but wasunsure whether they are in common use for thepurpose of self defense.

Assuming arguendo that such weapons areprotected by the Second Amendment, the courtthen concluded that it was “reasonably certain”that the prohibition does not substantially burden

23 Slip op. at 32.

24 Id. at 33-34.

25 Id. at 35.

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the right.23 Accordingly, it applied intermediatescrutiny.

The court upheld the ban on certain semi-automatic rifles, primarily because of evidencesuggesting that they are nearly as dangerous orprone to criminal misuse as the fully automaticrifles that Heller had excluded from constitutionalprotection.24 The ban on high-capacity magazineswas upheld on the basis of evidence that they areuseful to criminals and that they encourage anexcessive number of shots to be fired by thoseengaged in legitimate self defense.25

B. The Kavanaugh Dissent

Judge Kavanaugh thought that the majority’sapproach to the case was based on a completemisinterpretation of Heller. In his view, the SupremeCourt has rejected the tiers-of-scrutiny approach.Instead, Heller teaches that courts are to assess gunregulations by looking to the Constitution’s text and tohistory and tradition, and by drawing analogies fromthese sources when dealing with modern weapons andnew circumstances. For the importance of the differencebetween his approach and the majority’s, JudgeKavanaugh cited Justice Scalia’s concurrence in

26 Id. at 11.

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McDonald, which argued that text, history, and traditionare less subjective and more susceptible of reasonedanalysis than the interest-balancing approach thatJudge Kavanaugh believes are exemplified in tests likestrict and intermediate scrutiny.26

Judge Kavanaugh analyzed the new case asfollows:

C He argued that D.C.’s entire registration andlicensing scheme is unconstitutional because itdoes not meet Heller’s test approving of“longstanding” regulations. He conceded thatregistration requirements imposed on gun sellersmeet Heller’s test, but pointed out that there is notradition of imposing such requirements on gunowners. The city’s licensing requirements, whichare inseparable from the registration requirement,are similarly novel and therefore also invalid.

Judge Kavanaugh’s analysis was based on amisreading of Heller. The Supreme Courtannounced that certain longstanding regulationsare presumptively constitutional, and JudgeKavanaugh is right that registration requirementson gun owners do not meet that test. But Hellernowhere said that novel regulations are alwaysunconstitutional. The relative novelty of thehandgun ban at issue in Heller may have affectedthe attitude of some Justices, but the Court

27 Id. at 32-33.

28 Id. at 34-37.

29 Dick Heller, the only plaintiff whose constitutionalchallenge was considered by the Supreme Court, was found to havestanding because his application for a license to possess a specificsingle-action .22 caliber revolver was rejected by the D.C.government. Parker v. District of Columbia, 478 F.3d 370, 375-78(D.C. Cir. 2007). A copy of the application, which identified theparticular gun at issue, was filed in the trial court as Exhibit Aaccompanying the plaintiffs' brief in support of summary judgment,and thus was part of the record in the case. Whether or not any ofthe Justices examined the record, the Court had to be referring tothis specific revolver when it said: “Assuming that Heller is not

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actually rested its decision on a perception thatmany Americans today have good reasons formaking handguns their preferred weapon fordefense of the home. The Court did not say thatthe novelty of the ban rendered itunconstitutional.

C Judge Kavanaugh also concluded that D.C.’s banon semi-automatic rifles is unconstitutionalbecause (1) they are they are not meaningfullydifferent from semi-automatic handguns, whichHeller had already decided may not be banned,27

and (2) they have not traditionally been bannedand are in common use today.28

This reading of Heller is also technically flawed.The Supreme Court’s holding involved only aparticular handgun, which was a revolver, not asemi-automatic.29 Heller did not say, one way or

disqualified from the exercise of Second Amendment rights, theDistrict must permit him to register his handgun and must issuehim a license to carry it in the home.” Heller, 554 U.S. at 635(emphasis added).

30 554 U.S. at 625.

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the other, whether a ban on semi-automaticpistols would be unconstitutional.

Judge Kavanaugh also misread Heller on thecommon use test. In that case, the Supreme Courtconcluded that “the Second Amendment does notprotect those weapons not typically possessed bylaw-abiding citizens for lawful purposes, such asshort-barreled shotguns.”30 The awkward doublenegative in this statement strongly suggests thatthe Court was careful to avoid saying that allweapons typically possessed for lawful purposesare protected. Whatever the Court may decide inthe future, it has not yet said that all weapons incommon use for lawful purposes are ipso factoprotected by the Second Amendment.

III. Applying Heller

A. The Rights and Wrongs of the Majority Approach inHeller II

Judges Ginsburg and Kavanaugh engaged in adetailed debate about the appropriate framework foranalysis. Neither judge made a plausible case that his

31 Slip op. at 14-26.

32 Id. at 36-38.

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preferred framework can be derived from the Helleropinion. The debate is fairly elaborate, and I will just givea couple of illustrative examples.

C Judge Kavanaugh claimed that Justice Breyer’sdissent in Heller advocated the use of intermediatescrutiny, and that the majority’s express rejectionof Breyer’s approach therefore implies a rejectionof that standard of review.31 Judge Ginsburgcorrectly responded that Heller rejected onlyBreyer’s arguably idiosyncratic version ofintermediate scrutiny rather than a more exactingversion suggested by the Supreme Court’s caselaw.32

C Judge Ginsburg, for his part, drew his approachlargely from post-Heller decisions of other circuitcourts, not from Heller itself. As Judge Kavanaughappropriately noted, this required Ginsburg toignore or discount numerous passages in Hellerthat rely on history and tradition, and condemnthe use of interest-balancing tests. JudgeKavanaugh is right that the application of testslike strict and intermediate scrutiny necessarilyentail a balancing of the government’s interestagainst those of the aggrieved citizen. And it iscertainly true that the Heller opinion nowhereendorses the use of strict or intermediate scrutiny.

33 For a detailed proof of these claims, see Lund, supra note6, at 1356-67.

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The real problem is that Heller is so Delphic, ormuddled, that the kind of methodological debate foundin Heller II is unresolvable. That said, Judge Ginsburg’sapproach seems to me to be clearly preferable.

First, as I explained above, Judge Kavanaugh’sapproach required him to misread Heller in order to findguidance precise or clear enough to provide rules ofdecision in Heller II.

Second, and perhaps more important, JusticeScalia’s Heller opinion itself shows that his use of historyand tradition is little more than a disguised version ofthe kind of interest balancing that he purports tocondemn. At crucial points, he simply issued ipse dixitsunsupported by any historical evidence, and at otherpoints, he misrepresented historical facts.33 He couldhardly have avoided doing so, given the paucity ofrelevant historical evidence, and that problem will beeven more acute in future cases dealing with relativelynovel regulations. Covert interest-balancing dressed upas an analysis of history and tradition is no better thanmore straightforward interest-balancing in the form ofstrict or intermediate scrutiny, and almost certainlyworse.

This is not to say that Heller II was correctlydecided. Judge Kavanaugh’s most powerful argumentsare directed against the majority’s application of itsframework to the challenged regulations. Those

34 For a useful discussion of the long and unsuccessful effortto impose national registration requirements on gun owners, seeDavid Kopel’s contribution to this symposium.

35 Kavanaugh dissent, slip op. at 49.

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regulations were manifestly meant to suppress thelegitimate exercise of constitutional rights, and JudgeKavanaugh was right to conclude that they should beinvalidated.

Judge Kavanaugh is right that D.C.’s registrationand licensing scheme is quite different from the verylimited registration requirements that have beentraditional in America.34 The important point, however,is not their novelty, but their onerous character andtheir lack of an adequate rationale. Whether under strictor intermediate scrutiny, they should not be upheldwithout a showing by the government, at a minimum,that they can make a significant contribution to publicsafety. The City had tried to do so by arguing that aregistration system enables police officers who areexecuting warrants to determine whether residents inthe dwelling have guns.35 This rationale is grosslyinadequate. No sane police officer in the District ofColumbia would assume that the residents of a dwellingare unarmed just because they have not registered agun. The regulation cannot accomplish the purposeadvanced to justify it, and the justification cannot satisfyheightened scrutiny.

Apart from the government’s failure to show asubstantial relation between public safety and its

36 This is not a paranoid fantasy. See, e.g., Stephen P.Halbrook, “Only Law Enforcement Will Be Allowed to Have Guns”:Hurricane Katrina and the New Orleans Firearm Confiscations, 18Geo. Mason U. C.R. L.J. 339 (2008) (discussing the aftermath of apolice decision that only law enforcement officers would be allowedto possess guns in New Orleans after Hurricane Katrina struck thearea).

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registration and licensing requirements, and apart fromthe onerous nature of some of those requirements, thiskind of registration system has traditionally beenresisted in America history for a reason closely bound upwith an important purpose of the Second Amendment.When the government collects this kind of detailedinformation about individuals and the guns they own, itgives itself a powerful tool that it could use for theunconstitutional confiscation of guns or theunconstitutional harassment of gun owners.36 Even anarrow reading of the Second Amendment would have toacknowledge that its purpose includes the prevention ofsuch illegalities. For that reason, the District ofColumbia should have an especially heavy burden tobear in justifying regulations that would help it to dowhat it has already demonstrated that it wants to do,namely disarm the civilian population. The District camenowhere close to meeting that burden.

The majority’s decision to uphold D.C.’s ban on awide range of semi-automatic rifles is also inconsistentwith heightened scrutiny. The banned rifles are definedprimarily in terms of cosmetic features, and they arefunctionally indistinguishable from other semi-automaticrifles that are not banned. The regulation is therefore

37 Slip op. at 33.

38 See Kavanaugh dissent, slip op. at 41.

39 554 U.S. at 624 (asserting that it would be “startling” toconclude that restrictions on machineguns might beunconstitutional).

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arbitrary and without any real relation to public safety.It certainly fails the majority’s own test, under which“the Government has the burden of showing there is asubstantial relationship or reasonable “fit” between, onthe one hand, the prohibition . . . and, on the other, [theGovernment’s] important interests in protecting policeofficers and controlling crime.”37 That alone should havesufficed to invalidate the ban.38

Heller assumed that fully automatic rifles areoutside the protection of the Second Amendment.39 TheHeller II majority analogized semi-automatic rifles tothese unprotected weapons on the ground that semi-automatics can fire almost as rapidly as those that arefully automatic. This argument is mistaken. Hellertreated fully automatic weapons as a special case,apparently on the basis of history and tradition, withoutsaying anything at all to suggest some kind ofpenumbral rule that protected weapons must have asignificantly slower rate of fire than those that are fullyautomatic. Even asssuming, arguendo, that such apenumbral rule was implied by Heller, D.C. allows othersemi-automatic rifles that can fire just as quickly asthose that are banned. The underinclusivness of theregulation confirms it was not based on a similarity

40 Judge Kavanaugh also said that the majority “contendsthat semi-automatic handguns are good enough to meet people’sneeds for self-defense and that they shouldn’t need semi-automaticrifles.” Slip op. at 39. He rightly rejected this kind of argument, asHeller itself had already done. Id. (citing 554 U.S. at 629). I could notfind this contention in the majority opinion, so perhaps it wasremoved after Judge Kavanaugh circulated his dissent to the othermembers of the panel.

41 Slip op. at 35.

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between automatic and semi-automatic weapons.40 Thesimilarity therefore cannot justify the regulation underheightening scrutiny.

The majority offered two justifications for the banon large-capacity magazines. First, it accepted testimonythat such magazines give an advantage to criminals benton “mass shootings.”41 Maybe they do. But how could theDistrict’s regulation possibly reduce this problem? Largecapacity magazines are freely available by mail order andin stores a short distance away in Virginia. The courtseems to be assuming that criminals bent on massshootings will refrain from obtaining such magazines outof respect for D.C.’s regulation. Rather thanthoughtlessly accept this preposterous assumption, thecourt should have taken judicial notice of the opposite.

The majority also credited testimony that large-capacity magazines can tempt legitimate self-defenseshooters to fire more rounds than necessary. Thisanalysis shows at most that banning such magazinescould conceivably have some good effects on someoccasions. But the same could be said of D.C.’s original

42 651 F.3d 684 (7th Cir. 2011).

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and unconstitutional ban on all handguns, whichillustrates why the argument is fatally flawed. Banningmedical books containing photos of corpses might savesome children from psychological trauma, which wouldbe a good thing, too. But nobody would consider such abook ban constitutional.

Assuming that intermediate scrutiny isappropriate, the government is required at a minimumto show a substantial relation between the regulation andpublic safety. The Heller II majority cited no evidenceshowing that the magazine ban would save anysignificant number of lives, or any lives at all. Nor did iteven consider the possibility that innocent civiliansmight lose their lives because they ran out ofammunition while trying to defend themselves. Thegovernment failed to meet its burden of showing that themagazine ban satisfies even intermediate scrutiny, andthe ban should therefore not have been upheld.

B. A Better Approach: Ezell v. City of Chicago

Chicago responded to McDonald in much the samefashion as the District of Columbia had responded toHeller: by adopting a sweeping and burdensome newregulatory regime to replace the handgun ban that theSupreme Court had invalidated. In Ezell v. City ofChicago,42 the Seventh Circuit reviewed Chicago’sdecision to require one hour of range training as aprerequisite to lawful for gun ownership, while

43 The anchor for this conclusion in the Supreme Court’sjurisprudence is weak, especially because the only example of suchunprotected rights clearly identified in Heller was the possession ofshort-barreled shotguns (and apparently also machineguns). That

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simultaneously banning from the city any range at whichthis training could take place.

After the district court denied the plaintiffs’ motionfor a preliminary injunction, the Seventh Circuitreversed and remanded with orders to grant the motion.Because of the procedural posture of the case, the courtof appeals did not issue a decision on the merits. Inexplaining why the plaintiffs had demonstrated a stronglikelihood of success on the merits, however, the courtprovided a detailed analysis that I will treat for simplicityof exposition as though it were a merits decision.

Judge Diane Sykes began by offering a moredetailed and somewhat different interpretation of Hellerand McDonald than Judge Ginsburg did in Heller II.Briefly stated, she interpreted the Supreme Court’sopinions as follows:

C Just as some categories of speech are unprotectedby the First Amendment as a matter of history andtradition, some activities involving arms arecategorically unprotected by the Constitution. Toidentify those categories, courts should look to theoriginal public meaning of the right to arms (as of1791 with respect to the Second Amendment andas of 1868 with respect to the FourteenthAmendment).43

example was based on the Court’s interpretation of a 1939precedent, which had not concluded that such weapons wereoutside the scope of the right to arms in 1791. Nonetheless, JudgeSykes’ interpretation of Heller does have the merit of making somesense out of Heller’s rhetoric about original meaning, which isprobably about the most that a subordinate court can be expectedto accomplish.

44 651 F.3d at 703. Here again, Judge Sykes adopted aquestionable interpretation of Heller, which declined to specify thatFirst Amendment analogies are so generally applicable. Again,however, her interpretation of Heller is not foreclosed by JusticeScalia’s opinion, and it has the merit of making sense.

45 Judge Sykes said that the Supreme Court opinions“suggest” this conclusion. Id. at 703. She is right that the suggestionis there, and I believe that she is also right that no betterinterpretation is apparent.

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C If an activity is not within an unprotectedcategory, courts should evaluate the regulatorymeans chosen by the government and the publicbenefits at which the regulation aims. “Borrowingfrom the Court’s First Amendment doctrine, therigor of this judicial review will depend on howclose the law comes to the core of the SecondAmendment right and the severity of the law’sburden on the right.”44 Broadly prohibitory lawsrestricting the core Second Amendment right —like those at issue in Heller and McDonald — arecategorically unconstitutional.45 All other lawsmust be judged by one of the standards of means-end scrutiny used in evaluating other enumeratedconstitutional rights, and the government always

46 Id. at 704-06.

47 Id. at 708.

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has the burden of justifying its regulations.

The court concluded that firing ranges are notcategorically outside the protection of the SecondAmendment. Historical evidence approvingly cited inHeller (albeit not on this issue) supported the conclusion,and a variety of other evidence cited by the City fell “farshort of establishing that target practice is whollyoutside the Second Amendment as it was understoodwhen incorporated as a limitation on the States.”46

The more difficult question for the court involvedthe choice of a standard review. Judge Sykes plausiblyinterpreted Heller to point toward the use of FirstAmendment analogies, and she summarized the ratherintricate set of tests generated by the Supreme Court inthat area. From those cases, she distilled an approach tothe Second Amendment. Severe burdens on the coreright to self-defense will require an extremely strongpublic-interest goal and a close means-ends fit. As arestriction gets farther away from this core, it may bemore easily justified, depending on the relative severityof the burden and its proximity to the core of the right.47

Applying this test to the gun-range ban, the courtconcluded that the right to maintain proficiency in theuse of weapons is an important corollary to themeaningful exercise of the core right. This requires arigorous review of the government’s justifications, “if not

48 Id. at 708.

49 Id. at 708. Judge Rovner favored a less stringent standardof review, and would have given more credit to the City’s public-safety concerns. See id. at 713-15 (Rovner, J., concurring in thejudgment).

50 Id. at 709-10 (majority opinion).

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quite ‘strict scrutiny.’”48 The City did not come close tosatisfying this standard.49 It produced no evidenceestablishing that firing ranges necessarily pose anysignificant threat to public safety, and at least one of itsarguments was so transparently a makeweight that “[t]oraise it at all suggests pretext.”50

The analytical framework adopted by Judge Sykesin this case is broadly similar to the one adopted by theHeller II majority. Her approach, however, is superior inat least two important respects.

First, whereas Heller II adopted a view reflecting asomewhat loose consensus of other circuit courts, JudgeSykes relied almost entirely on Heller, McDonald, andother Supreme Court decisions, and she exhibited adetailed and thoughtful familiarity with those opinions.It is true that Heller and McDonald can be readdifferently, as Judge Kavanaugh showed in Heller II, butJudge Sykes’ analysis of them has better support in thetext of the opinions. Because subordinate courts arerequired to follow the Supreme Court, but not to followthe lead of other circuits, it is generally a better practiceto focus on what the Supreme Court itself has said — tolook, so to speak, for the Court’s “original meaning” —

51 McDonald, 130 U.S. at 3044. Cf. United States v. Skoien,614 F.3d 638, 651-54 (7th Cir. 2010) (en banc) (Sykes, J.,dissenting) (criticizing the majority for relieving the government ofits burden of justifying its disarmament regulation and for deprivinga criminal defendant of an opportunity to contest the dubious non-record evidence on which the court of appeals relied).

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than to play a kind of telephone game by interpretingSupreme Court opinions on the assumption that someother courts read them correctly.

Second, and this is more important, Judge Sykestook the importance of the Second Amendment as aconstitutional right more seriously than the Heller IImajority. Whereas Heller II casually applied intermediatescrutiny in a way that too often accepted flimsyjustifications for the regulations, Judge Sykes insistedon the kind of rigor that courts routinely demand in FirstAmendment cases. Unlike the Heller II majority, she gaveappropriate attention to the fundamental principle,expressly adopted by the Supreme Court, that theSecond Amendment should not “be singled out forspecial — and specially unfavorable treatment.”51

Conclusion

The Supreme Court’s Heller opinion disapproveda governmental ban on keeping a handgun in the home,while announcing its approval of a number of other guncontrol regulations. The Court refused to adopt any clearanalytical framework for resolving the countless issuesabout which Heller said nothing. Some of its reasoning,

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or rhetoric, suggests that such issues should be resolvedsolely by consulting American history and tradition,along with the text of the Constitution. Other parts of theopinion suggest that courts should develop a frameworkmore akin to what Chief Justice Roberts called the“baggage” that the First Amendment has picked up fromthe judiciary.

The federal courts of appeals have refused to followthe history-and-tradition approach. The effort by JudgeKavanaugh to take that approach in his Heller II dissentillustrates why this approach is not likely to provefruitful, or even workable. Other circuit courts have triedto adapt the First Amendment “baggage” to this newarea, with mixed results. The D.C. Circuit’s majorityopinion in Heller II illustrates the perils of adapting thisbody of case law without attending with sufficient care tothe Supreme Court’s existing jurisprudence and withoutadequate regard for the value of Second Amendmentrights. Judge Sykes’ opinion for the Seventh Circuit inEzell shows that circuit judges who are so inclined canshow appropriate respect both to the Supreme Court andto the Second Amendment. She deserves to be widelyimitated.