JURIST Guest Columnist Nicholas Johnson of the Fordham University School of Law says that the US Supreme Courts’ potential handling of proposed assault weapons ban legislation is uncertain because of an increasingly popular two-step analysis that is more suited to legislation placing a burden upon gun ownership rather than legislation banning certain guns…

The coming debate over the proposal for a new assault weapons ban (AWB) will have a variety of strands. The political ones are difficult to constrain, and in that arena, predictions of outcomes are the purest speculation. The parameters of the constitutional debate are slightly more predictable. I will attempt to elaborate a few of them below.

When the US Supreme Court affirmed the individual right to arms in District of Columbia v. Heller, it suggested, among other things, that the Second Amendment to the US Constitution protects firearms in “common use.” This invoked the longstanding view that “militia,” as referenced in the prefatory clause, equals the body of the people bearing their own private arms in common use at the time.

I have shown in my previous scholarship (specifically in the Harvard Law and Policy Review and Santa Clara Law Review [PDF]) how “common use” yields objective assessment of whether a gun is functionally, ballistically or numerically common. This assessment would protect firearms in the families of handguns, shotguns and rifles in the civilian inventory. It would exclude “dangerous and unusual” weapons, like fully automatic machine guns that are numerically uncommon, functionally distinct and have been specially regulated since the 1930s. It also would answer “no” to snarky questions, such as: “do US citizens have a right to bazookas, stinger missiles, tanks, etc.?”

The common use standard offers a relatively straightforward basis for evaluating the constitutionality of the proposed AWB. One of the rifles on the ban list is the AR-15. Functionally, this rifle is the same as countless repeating rifles that have not raised the ire of legislatures. But, based on its styling (it looks like the military M-16), it is perennially on the wish list of guns that should be banned. After the horror in Newtown, Connecticut, it is for many, the exemplar of the class of “bad guns” that should be banned.

The thing is though, there are millions of AR-15s in the civilian inventory, so they are undeniably common. This is one of the unintended consequences of the now-expired Violent Crime Control and Law Enforcement Act of 1994, which in the same breath banned the AR-15 (and a variety of other guns) and blessed functionally identical guns like the Ruger Mini 14 and cosmetically modified AR-15s (i.e., the same guns minus the superfluous flash suppressors, adjustable stocks and bayonet lugs). The central enduring legacy of the 1994 law was to juice demand for this style of gun, ironically pushing the number in the civilian inventory from a few hundred thousand to a number now approaching ten million.

Predictably, whether the AR-15 is constitutionally protected is a more complicated question than this counting would suggest. Because, although the Supreme Court has plainly said that guns in common use are protected, lower courts interpreting Heller are in the midst of developing less-robust standards of review that make the constitutionality of assault weapons bans an open question. The lower court efforts are not simple usurpations. They stem from the fact that the common use standard offered in Heller has a limited scope. It works well for assessing the legitimacy of flat technology bans — the precise type of question raised in Heller. But most gun laws are not gun bans. Many gun regulations — e.g., time, place and manner regulations — just impose friction on the right to arms. Many post-Heller challenges focused on those sorts of laws.

To solve these allowable friction questions, lower courts need something that the Supreme 
Court did not provide. The emerging dominant standard draws from the familiar rhetoric of intermediate, heightened and strict scrutiny. Different courts have done subtly different things, but basically they have assessed Second Amendment questions through a two-part filter: asking, first, whether the law impinges on a core Second Amendment right; and second, whether it survives under the appropriate level of scrutiny. Different courts have applied different levels of scrutiny, and it is hard to discern what guides those choices.

The thing that makes the AWB question uncertain is the real possibility that courts will apply this two-step standard of scrutiny analysis (which is suited to friction cases) to a plain gun question (where the common use standard would be truer to Heller). In fact, this already has happened in the US Court of Appeals for the District of Columbia Circuit’s 2011 decision in Heller v. District of Columbia (Heller II). The decision addressed a challenge to the gun law devised by the district in response to the Supreme Court’s 2008 Heller decision. Addressing a variety of challenges to the new law, the DC Circuit applied its version of the emerging dominant standard, asking: (1) whether a restriction impinges upon a core right protected by the Second Amendment (with “longstanding” regulations presumptively lawful), and if it does, then (2) whether the restriction passes muster under the level of constitutional scrutiny the court deems appropriate.

Both the majority and the dissent acknowledge that the AR-15 is a gun in common use (before the trial court, the evidence showed Americans owned close to 4 million AR-15s; the number has climbed rapidly since then). How the Court proceeds from there is illuminating. The dissent treats common use as a solid, liberty-protecting standard. Guns in common use cannot be banned. For the majority, acknowledging the AR-15 as a gun in common use is just a rhetorical lead-in to the two-stage standard of review. The court found that the DC law did, in fact, burden a core Second Amendment concern. But, during the second stage of analysis, the majority determined that the ban does not “substantially burden” the right to self-defense (people could still have handguns and many other types of long guns).

The majority’s reasoning is not derived from Heller and it is interesting to speculate what else would pass muster under this approach. Pushed hard, it would seem to allow very broad gun bans, as long as some core self-defense guns remained legal. That result would approximate the District of Columbia’s backup argument in Heller (rejected by the majority of the Supreme Court) that there was an implicit self-defense exception to the original DC law, which required long guns to be kept disassembled and unloaded. It also hews closer to the balancing approach offered by Justice Stephen Breyer’s dissent than to the decision of the Heller majority.

The level of discretion appropriated by judges under the second stage of the burgeoning standard is remarkable. The level of scrutiny courts choose to apply is largely outcome determinative and there are no evident restrictions on what level of scrutiny courts can select (except for the consensus that the open pipe of “rational basis” would be insufficient). In fact, the standard seems to allow courts to create from whole cloth previously unexpressed levels of scrutiny. For example, the US Court of Appeals for the Seventh Circuit has applied “not quite strict scrutiny” to a Second Amendment case. Evidently, this is something more demanding than intermediate scrutiny. Why this level and not something else? Who knows? And from judge to judge — case to case — what do these filters demand? Who is to say?

To complicate things further, the two-step, scrutiny analysis is not the only possibility for evaluating the proposed AWB. Another potential standard is rooted in abortion jurisprudence. The US Court of Appeals for the Ninth Circuit, in Nordyke v. King, and Judge J. Harvie Wilkinsen have both invoked an abortion rights analogy in post-Heller treatments of the Second Amendment. I will delve into this analogy in a forthcoming JURIST article.

Nicholas Johnson is a Professor of Law at Fordham University School of Law. His principal subjects are contracts, environmental law, and gun control/gun rights. He has published extensively on Firearms law and the Second Amendment, including its intersection with abortion law.

Suggested citation: Nicholas Johnson, Assault Weapons Ban: Constitutional Parameters of Gun Control, JURIST – Forum, Feb. 25, 2013, http://jurist.org/forum/2013/02/nicholas-johnson-gun-control.php