Standards of Review: A Review

When it comes to the Second Amendment, Dennis Henigan believes in “greater judicial deference to legislative judgments.” Why? Because the right to keep and bear arms “has immediate and direct implications for the health and safety of others.” Hmm. What about publication of a manual for hit men, or a booklet on bomb-making, or the indoctrination of young Muslims in privately funded madrassas? Each of those is protected by the First Amendment, and yet each has far greater implications for public safety than the right of D.C. residents to keep a handgun in their home.

Citing UCLA law professor Adam Winkler, Henigan declares that “state courts … have universally rejected strict scrutiny or any heightened level of review in favor of a highly deferential ‘reasonableness’ test that has been met by virtually every gun control law challenged in the state courts.”

First, that statement is inaccurate. Through 2003, state courts voided laws infringing on the right to keep and bear firearms on at least 20 occasions. (See the amicus brief [pdf] filed in Heller by the American Legislative Exchange Council, note 2.) Quite a few of the overturned laws entailed carry restrictions, which are clearly less invasive than the prohibitions on mere possession that are at issue in places like D.C., Chicago, and San Francisco.

Second, there’s no inherent incompatibility between “reasonableness” and heightened scrutiny. Courts can rigorously review gun restrictions for reasonableness without being highly deferential to the legislature. Here’s how the Goldwater Institute [pdf] described the interaction: “As with the First Amendment’s free speech right, the Second Amendment’s personal right is subject to a range of reasonable restrictions even though strict scrutiny applies to the core of the protected conduct.” (Amicus brief in Heller, p. 14.) The brief goes on to recommend strict scrutiny, but “subject to well-understood historical exceptions and reasonable restrictions on time, place, and manner — just as is the case with other constitutionally enumerated rights.” (Ibid., pp. 14-15.)

Henigan conflates the prescription of a standard of review with the application of a test to determine if that standard has been met. He’s not alone in that confusion. Many others, myself included, find that tiered levels of scrutiny and multiple tests are mystifying and, even worse, often reflective of judges’ personal preference for some rights over others. On the other hand, as UCLA law professor Eugene Volokh has argued, different rights have different purposes and run up against different sets of government and private interests. The same verbal formulation might not yield a suitable standard for all rights. The key point, however, is this: Courts must be vigorously engaged in protecting us from legislative and executive impulses that violate constitutionally secured rights. And judges must have a proper respect for the document they are charged with enforcing — focused on expansive individual liberties and a tightly constrained government of limited and enumerated powers.

Also from This Issue

Lead Essay

  • District of Columbia v. Heller: What’s Next? by Robert A. Levy

    Robert A. Levy, Cato Institute senior fellow in constitutional studies, was co-counsel to Mr. Heller in District of Columbia v. Heller, last month’s controversial Supreme Court case in which Washington, D.C.’s ban on gun ownership was ruled unconstitutional on the basis of a Second Amendment individual right to possess firearms. But what does Heller really imply for the future of gun rights and gun control in America? In this month’s lead essay, Levy asks and gives his answers to the questions on the minds of gun lovers and gun controllers alike. What gun regulations will now be permissible? Will the Second Amendment be “incorporated”? Did the court engage in “judicial activism”? And what’s next for the on-the-ground politics of gun control in Washington, D.C. and beyond? Levy’s tightly reasoned essay marks the beginning of the new American debate about guns after Heller.

  • The Heller Paradox: A Response to Robert Levy by Dennis A. Henigan

    In his vigorous reply to Levy’s lead essay, Dennis A. Henigan, Vice President for Law and Policy at the Brady Center to Prevent Gun Violence, argues that Heller was “a prototypical misuse of judicial power to advance an ideological agenda” based on Justice Scalia’s “transparently inconsistent and manipulative” reading of historical texts. Nevertheless, Henigan argues that “the Heller decision should prove to be a sharp disappointment to the gun lobby and other Second Amendment extremists” because “the lower courts are likely to interpret Heller as giving a constitutional green light to virtually every gun control law short of a handgun ban.” Moreover, Henigan argues, by decisively forbidding outright bans, Heller has defused the argument that gun control regulation sets us on a slippery slope to a society in which private citizens are not allowed to own guns. And therein lies the Heller paradox. By making Second Amendment rights clearer, the Court has made gun control easier.

  • The Right to Bear Arms and “Sensible” Gun Laws by David Kopel

    In his reply, Second Amendment scholar David Kopel argues that the Constitution’s mention of “the” right to bear arms implies the right pre-existed the government, and that the point of the Second Amendment was to rule out its infringement. That pre-existing right, Kopel maintains, was “the right of having arms for personal defense,” and there is little evidence for a pre-existing militia right. Kopel agrees with Dennis Henigan that “the Heller decision … will probably not affect most gun laws in the United States, even assuming incorporation in the 14th Amendment,” but differs on the nature of “sensible” gun control, and offers a useful and informed discussion of current regulations. Regarding Washington, D.C.’s newly minted regulations, Kopel predicts that “the new law will be declared void by the D.C. Circuit Court of Appeals, and that the Supreme Court will deny cert.”

  • The Heller Decision: Conservative Activism and its Aftermath by Erwin Chemerinsky

    In his reply to Robert Levy’s lead essay, constitutional scholar Erwin Chemerinsky argues that Scalia’s majority opinion in Heller was based on a shoddy application of Scalia’s own judicial principles and “powerfully demonstrates that Justice Scalia’s constitutional rulings … ultimately are animated by his conservative politics.” According to Chemerinsky, by ignoring a long history of precedent and throwing into question “countless other statutes and ordinances,” the decision “showed that conservative rhetoric about judicial restraint is a guise that is used to oppose rights [the conservatives on the Supreme Court] don’t like.” Chemerinsky further criticizes the court for failing to clarify the level of scrutiny to be applied to gun regulation, and suggests that it should be the “reasonableness” test. Heller will be incorporated, Chemerinsky predicts, but will unlikely affect the coming elections.

The Conversation