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More than a decade after its landmark decisions in District of Columbia v. Heller and McDonald v. City of Chicago, the U.S. Supreme Court has remained silent on the Second Amendment. The October 2019 term was no different: the Supreme Court denied petitions for certiorari on ten different gun rights cases (drawing a dissent from Justice Thomas, joined in part by Justice Kavanaugh) and denied as moot a challenge to harsh restrictions on firearm transportation in New York State Rifle & Pistol Association v. City of New York.

Court watchers have speculated that the Court’s conservatives, who have enough votes to grant certiorari, have declined to do so because they were wary of how Chief Justice Roberts might vote on the merits. While the status quo might change with the confirmation of Justice Barrett—whose dissent in Kanter v. Barr emphasizing the role of history and tradition suggests that her approach may mirror Justice Scalia’s—the Court has yet to successfully break the gridlock and create consistent procedures for adjudicating Second Amendment cases.

In the absence of clear guidance from the Court, circuit courts have had ample time to formulate a framework under which to decide Second Amendment claims. Indeed, they have uniformly adopted some iteration of the two-part test first adopted by the Third Circuit in United States v. Marzzarella. Under such an approach, the first inquiry is whether the statue imposes a “burden on conduct falling within the scope of the Second Amendment.” If not, the court proceeds no further. However, if the court finds that the burdened conduct is protected by the Second Amendment, then it “evaluate[s] the law under some form of means-end scrutiny.”

Overwhelmingly, intermediate scrutiny has been applied. However, decisions from the Fourth, Fifth, and Seventh Circuits have all indicated that the level of judicial scrutiny applied to the case depends upon “how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right.” (See Ezell v. City of Chicago). The First Circuit has been careful not to tie itself to specific, named categories of scrutiny (nevertheless applying a typical intermediate scrutiny formulation), while the Eighth Circuit has so far been able to sidestep the scrutiny conundrum altogether.

It appears that the Marzzarella formulation is here to stay until a reticent Court says otherwise. So what are the practical results? In particular, who and what do circuit courts think may be properly regulated without running afoul of the Second Amendment?

As far as who is concerned, circuit courts have upheld a wide range of categorical class-based bans. For example, the First and Fifth Circuits, applying intermediate scrutiny, have upheld handgun bans for 18–21 year-olds. But on felon possession, the circuits are split: the Ninth Circuit, for example, held that “felons are categorically different from the individuals who have a fundamental right to bear arms,” while the Third Circuit held that Heller’s “presumptively lawful” language creates a rebuttable presumption against which a felon might distinguish himself. The list of excluded classes doesn’t stop there: domestic violence misdemeanants, those under a domestic violence restraining order, unlawful drug users, and undocumented immigrants have all been banned from gun ownership. And while courts do not apply it every time, intermediate scrutiny prevails as the most common method of adjudicating facial challenges to class-based bans.

And what about the what? Semi-automatic weapons bans and magazine capacity restrictions are consistently held to pass constitutional muster in the circuits, although commentary on this blog has noted that the Ninth Circuit in Duncan v. Becerra recently struck down a 10-round magazine limit as unconstitutional. Furthermore, “good cause” requirements for the issuance of a concealed carry permitted have generated another circuit split. Drawing from Heller’s core protection of “the right of law-abiding, responsible citizens to use arms in defense of hearth and home,” the Second and Ninth Circuits have concluded that the right to carry a firearm for protection outside of the home falls outside of the right protected by the Second Amendment. Contrast that with the D.C. Circuit’s holding in Wrenn v. District of Columbia holding directly to the contrary.

 Despite its near-ubiquitous application, it is unclear whether means-end scrutiny comports with the majority opinion in Heller or the original public meaning of the Second Amendment. In large part, this confusion is because of Heller itself, which notes that the individual right to firearms is not unlimited but nevertheless explicitly declines to adopt a standard. Per the Court:

[Justice Breyer] criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes . . . a judge-empowering “interest balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” . . . We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The 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. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. . . . The Second Amendment . . . is the very product of an interest-balancing by the people.

Although the Court does not reject its use, means-end balancing is hard to square with this reasoning. After all, how can a test inquiring whether a regulation is “narrowly tailored to a compelling governmental interest” possibly shed light on the scope of a fixed right? In rejecting a “freestanding ‘interest-balancing’” approach, the Court all but slams the door on even the strictest modern formulation scrutiny.

Then-Judge Kavanaugh’s dissent in Heller II rejects means-end scrutiny analysis altogether, instead favoring “a test based wholly on text, history, and tradition.” What is clear from Heller I is that the judge’s task is to determine the scope of the right, not to balance the respective governmental interests against it. The latter task has been handled by the Second Amendment. Therefore, because “[h]istory and tradition establish that several gun regulations have co-existed with the Second Amendment right,” it is those regulations and only those that should be upheld against it.

Heller is a landmark decision, but the majority left unfinished business. In Justice Scalia’s words: “[T]here will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.” (emphasis added). As demonstrated here, the range of Second Amendment issues is both wide and consequential, and the time is now to create clear, justiciable standards concerning the protection of these rights.