Image Source: (Fred Schilling, Collection of the Supreme Court of the United States)

June 28, 2022

SCOTUS Decision Sweeps Away Lower Courts ‘Interest-Weighing’ Tests on Guns

By Larry Keane

The U.S. Supreme Court’s ruling in New York State Rifle and Pistol Association v. Bruen did more than strike New York’s “may issue” subjective concealed carry permitting scheme. The ruling also told lower courts that attempting to balance the individual’s Constitutional right to keep and bear arms against the government’s interest in controlling that right violates the Constitution.

In other words, the Supreme Court told the lower courts to cut it out.

That’s significant, since it was a practice adopted by lower courts to seemingly always justify keeping gun control laws in place that ranged from subjective “may issue” concealed carry permitting laws to bans on entire classes of commonly-owned firearms and standard-capacity magazines.

The majority 6-3 opinion specifically singled out the court’s “two-step” process that has been applied to Second Amendment cases. That was a legal theory proposed by Justice Stephen Breyer in his dissent in District of Columbia v. Heller, but which the majority expressly rejected.

‘One Step Too Many’

“Despite the popularity of this two-step approach, it is one step too many,” wrote Justice Clarence Thomas in his opinion which was joined by Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. “Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support applying means end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”

Justice Thomas described the inappropriate two-part test adopted by lower courts to evaluate whether a gun control law passed Constitutional muster. First, the government always justified a law claiming the law in question fell outside of the Second Amendment protections. If the government proved the activity wasn’t protected, the examination stopped. If the law in question was within the Second Amendment’s scope – often courts would just “assume” it was protected – the courts then examined how closely the law came to cutting into the core of the Second Amendment to determine the level of scrutiny to apply, almost always determining the lesser intermediate scrutiny applied making it easier for the courts to uphold the infringement based on government interests. Heightened scrutiny was almost never applied. Justice Thomas noted that neither the Heller nor the McDonald decision relied on – or authorized – this two-step tier scrutiny means-end (interest balancing) test for evaluating whether a law or regulation infringed on the Second Amendment rights of individuals.

Second Amendment is the Test

“We declined to engage in means-end scrutiny because ‘[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon,’” Justice Thomas wrote. “We then concluded: ‘A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Not only did Heller decline to engage in means-end scrutiny generally, but it also specifically ruled out the intermediate-scrutiny test that respondents and the United States now urge us to adopt.”

“When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” he added.

Justice Thomas went to lengths to explain why means-end tests don’t pass Constitutional muster. In the end, the government will always find reason for the government to prevail. That strikes at the heart of enumerated rights – those rights which are endowed by an individual’s Creator and expressly belong to the individual, not the government.

“If the last decade of Second Amendment litigation has taught this Court anything, it is that federal courts tasked with making such difficult empirical judgments regarding firearm regulations under the banner of ‘intermediate scrutiny’ often defer to the determinations of legislatures,” Justice Thomas explained. “The Second Amendment ‘is the very product of an interest balancing by the people’ and it ‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense.”

Justice Alito, in a concurring opinion, reinforced Justice Thomas’s rejection of the “tiered scrutiny” approach to Second Amendment-related cases.

“Under that approach, a court, in most cases, assesses a law’s burden on the Second Amendment right and the strength of the State’s interest in imposing the challenged restriction,” Justice Alito wrote. “This mode of analysis places no firm limits on the ability of judges to sustain any law restricting the possession or use of a gun.”

Court Impacts

“Like that dissent in Heller, the real thrust of today’s dissent is that guns are bad and that States and local jurisdictions should be free to restrict them essentially as they see fit,” Justice Alito added. “That argument was rejected in Heller, and while the dissent protests that it is not rearguing Heller, it proceeds to do just that. Heller correctly recognized that the Second Amendment codifies the right of ordinary law-abiding Americans to protect themselves from lethal violence by possessing and, if necessary, using a gun.”

That’s significant since there are cases pending before the Supreme Court that hinge on lower courts applying balancing tests rejected by the Court. In Duncan v. Bonta, a challenge to California’s ban on standard capacity magazines, the U.S. Court of Appeals for the Ninth Circuit used this very test, even after a three-judge panel from the same court found that California’s law “simply cannot pass constitutional muster, whether analyzed under strict or immediate scrutiny.”

The full court, however, ignored that. The decision reads, in part, “The court applied a two-step framework to review the Second Amendment challenge…” and “…determined that intermediate scrutiny applied because the ban imposed only a minimal burden on the core Second Amendment right to keep and bear arms.”

That case is being petitioned to the U.S. Supreme Court.

There’s also Miller v. Bonta, a challenge to California’s ban on Modern Sporting Rifles (MSRs). The Ninth Circuit also heard that case but granted California’s Democratic Attorney General Rob Bonta an indefinite motion to stay a decision made by U.S. District Court Judge Roger Benitez, who found the ban unconstitutional. AG Bonta argued for the ban under an interest-weighing test. There’s a similar challenge, Rupp. v. Bonta, that was also stayed at the Ninth Circuit.

All will now be subject to the Supreme Court’s explicit rejection of interest-weighing tests.

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