Part Three of the Two Part Test

In the wake of Heller, state and federal courts have overwhelmingly applied what has come to be known as the “Two Part Test.” The first part is a threshold inquiry about whether the challenged regulation intersects with the Second Amendment at all. If the answer to that inquiry is yes, then courts move on to the second part: Typically some kind of means-end scrutiny, the stringency of which depends on how much the law burdens the “core” right of self-defense.

The desirability of the Two Part Test is, in many ways, the most important question currently before the Supreme Court in NYSRPA. (The constitutionality of the challenged regulation hardly matters, since that regulation—which, as best as anyone can tell, was unique and maybe not even enforced—has already been repealed, rendering the case moot for all intents and purposes.) Along with Darrell Miller and Eric Ruben, I’ve filed an amicus brief in support of neither party generally defending the two part approach against doctrinal alternatives like the test of “text, history, and tradition.”

But there’s another important question about the test, which is not whether it should be adopted, but how many parts it actually has. Although the two step, coverage-protection framework outlined above accounts for the vast majority of Second Amendment litigation, there’s a subset of cases (and a somewhat broader set of dissenting opinions) in which judges don’t apply any kind of scrutiny at all at part two. Instead, they blow right past the tiers of scrutiny, or any other standard doctrinal machinery, and apply per se rules of invalidity.

What justifies these per se rules? So far as I can tell, they are not predicated on a view that the Second Amendment’s right is absolute—a position that Heller clearly rejects—or that it always behaves as a Dworkinian “trump.” Rather, some judges seem inclined to adopt per se rules when they think that a challenged law has gone too far in terms of the burden it imposes on rightsholders. In those situations, no tailoring analysis is necessary or appropriate, and the law must be struck down.

The emerging part three of the two-part test, then, is the application of per se rules to certain especially burdensome gun laws. Heller itself is arguably an example, since the Supreme Court struck down DC’s handgun restriction without application of any standard doctrinal tests. The D.C. Circuit majority in Wrenn effectively made the same move by characterizing the DC public carry restrictions as a “ban,” and thus unconstitutional under any level of scrutiny. And a number of prominent dissenting opinions (including Judge Kavanaugh’s in Heller II) have essentially applied that approach in cases involving prohibitions on certain classes of arms (“assault weapons,” for example), eschewing means-end tailoring in favor of per se rules.

The downside of these per se rules, however, is that they can generate a false sense of clarity while hiding a great deal of judicial discretion. After all, what makes a restriction a “ban” in the first place? Most likely, the label is simply shorthand for saying that it is a really serious, and probably impermissible, restriction on a constitutional right. But that seems like something that should be the result of transparent legal reasoning, rather than a way to short circuit it. To call something a ban subject to per se invalidity is a legal conclusion, after all, not simply a threshold determination about which kind of doctrinal test to apply. It would seem better to reach that conclusion through a more thorough and transparent consideration of how the “core” interest of self-defense is impacted by a particular regulation.

I think that doing so would inevitably involve some kind of adequate alternatives analysis: If really serious burdens on rightsholders should be subject to per se invalidity, then prohibitions—even “bans” on particular arms or activities—that have minimal impact should not. In other words, one must consider not only what a legal regime forbids, but what it permits. Maybe assault weapons are banned, but handguns (the “quintessential self-defense weapon,” per Heller) are permitted, meaning that the constitutional interest in self-defense is itself not being prohibited. And if that’s the case, it means that some judges have gone astray in treating weapons in “common use” as being immune to prohibition.

I’ll have more to say about that particular question in a blog post tomorrow. And I try to address the broader phenomenon—which is not limited to the Second Amendment—in “Bans,” forthcoming soon in the Yale Law Journal. Short version: I have my doubts that the concept of a “ban” is doing any real or defensible work, but that the best case in favor of it would be the functionalist analysis described above.