Heller II: The Dissent

Say what you will about how much George W. Bush sucked for gun rights, and a lot of people make the case, but his judges seem to be the ones who take the Second Amendment seriously. It’s worth noting that Judge Sykes, who wrote the opinion in Ezell, was a Bush nominee. The other two judges were put on the Court by Bush the Elder, and Ronald Reagan. Reagan’s appointments to the Court seem to be more mixed. But Judge Kavanaugh, put on the bench by George W. Bush, was the dissenting judge in this case. From the opinion:

In my judgment, both D.C.’s ban on semi-automatic rifles and its gun registration requirement are unconstitutional under Heller.

In Heller, the Supreme Court held that handguns – the vast majority of which today are semi-automatic – are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi- automatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semi- automatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller’s protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional. (By contrast, fully automatic weapons, also known as machine guns, have traditionally been banned and may continue to be banned after Heller.)1

You can see the importance of the 2012 elections in whether we’re going to have a strong Second Amendment. The more people Obama puts on the federal courts, the more rulings like this we’re going to get, and eventually, without defense from the Supreme Court, the Second Amendment will slowly be interpreted to be an individual right that is virtually devoid of meaning.

Judge Kavanaugh’s dissent is very interesting, because he rejects an approach to the Second Amendment based on levels of scrutiny, and instead adopts one based on text and traditions, as described here:

So the major difference between applying the Heller history- and tradition-based approach and applying one of the forms of scrutiny is not necessarily the number of gun regulations that will pass muster. Instead, it is that the Heller test will be more determinate and “much less subjective” because “it depends upon a body of evidence susceptible of reasoned analysis rather than a variety of vague ethico- political First Principles whose combined conclusion can be found to point in any direction the judges favor.” McDonald, 130 S. Ct. at 3058 (Scalia, J., concurring).

Which has been precisely the behavior we’ve seen from federal judges, especially on lower courts.

The majority opinion here applies intermediate scrutiny and contends that intermediate scrutiny is consistent with Heller and McDonald. The majority opinion employs history and tradition only as a threshold screen to determine whether the law in question implicates the individual right; if so, the majority opinion then subjects the individual right to balancing under the intermediate scrutiny test. As explained above, I disagree with that approach. I read Heller and McDonald as setting forth a test based wholly on text, history, and tradition. Deeper examination of the two Supreme Court opinions – and, in particular, how the Court’s opinions responded to the dissents in the two cases – buttresses my conclusion.

I think this is a very interesting dissent, and I haven’t seen this approach taken before, but after reading the whole thing, I think it’s entirely consistent with what the Court was trying to say in Heller and McDonald.

The Supreme Court struck down D.C.’s handgun ban because handguns have not traditionally been banned and are in common use by law- abiding citizens, not because the ban failed to serve an important government interest and thus failed the intermediate scrutiny test. And the Court endorsed certain gun laws because they were rooted in history and tradition, not because they passed the intermediate scrutiny test.

One final aside about the appropriate test to apply: Even if it were appropriate to apply one of the levels of scrutiny after Heller, surely it would be strict scrutiny rather than the intermediate scrutiny test adopted by the majority opinion here. Heller ruled that the right to possess guns is a core enumerated constitutional right and rejected Justice Breyer’s suggested Turner Broadcasting intermediate scrutiny approach. And McDonald later held that “the right to keep and bear arms” is “among those fundamental rights necessary to our system of ordered liberty.”

If we want to see dissenting opinions like this become majority opinions, we have to get Obama out in 2012. I don’t care that smart ass half-wits like Jon Stewart make fun of us for trying to paint Obama as anti-gun. The people he’s putting on the Court will try to read the Second Amendment out of the Constitution, and that’s all that honestly matters.

It is especially inappropriate for the majority opinion here to apply intermediate scrutiny rather than strict scrutiny to D.C.’s ban on semi-automatic rifles. No court of appeals decision since Heller has applied intermediate scrutiny to a ban on a class of arms that have not traditionally been banned and are in common use. A ban on a class of arms is not an “incidental” regulation. It is equivalent to a ban on a category of speech. Such restrictions on core enumerated constitutional protections are not subjected to mere intermediate scrutiny review. The majority opinion here is in uncharted territory in suggesting that intermediate scrutiny can apply to an outright ban on possession of a class of weapons that have not traditionally been banned.


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