The Supreme Court may have to decide sometime whether the Second Amendment includes a personal right to “keep” assault weapons equipped with large-capacity magazines in the home and possibly to “bear” them on public streets as well. Two federal appeals courts have said no within the past six months, but the gun lobby’s paid intellectual champion is up in arms over the use of a relaxed constitutional test that he says relegates the Second Amendment to second-class status.
In the more recent of the decisions, the Second U.S. Circuit Court of Appeals on Oct. 19 upheld the assault-weapons bans enacted in New York and Connecticut in the wake of the Sandy Hook School massacre. Earlier, the Seventh U.S. Circuit Court of Appeals in April upheld a similar ban adopted by the Chicago suburb of Highland Park. David Kopel took to the blogosphere a few days after the Second Circuit decision to denounce what he called the “feeble” form of intermediate scrutiny the appeals court applied in upholding the two laws.
Kopel’s credentials need to be noted before proceeding further. His resume has the earmarks of scholarship: Ivy League degrees, adjunct law school professor, “research associate” at the Cato Institute, multiple books, and oodles of articles in law journals as well as general media. He is also research director at the Independence Institute, a Denver-based “think tank” that bills itself as “freedom’s first line.”
Unmentioned on those web sites are the generous sums that Kopel and the Independence Institute have reportedly received over the years from the National Rifle Association (NRA). Writing for The Progressive, the veteran journalist Frank Smith reported back in April 2014 that Kopel had benefited from a total of $1.4 million in grants from the NRA to himself or the institute over the period 2004-2011.
Smyth reported that Kopel acknowledged the funding but said he has no obligation to disclose it. Apparently, the Washington Post and the Post-published blog The Volokh Conspiracy feel the same way: Kopel’s lengthy ID includes nothing about the NRA. Smyth was prompted to write back in 2014 after the New York Times decided to mention the NRA funding in the author ID for Kopel when it published one of his opinion pieces.
Whatever the source of his strongly held views, Kopel identifies the issue that the Supreme Court must answer some day: what level of constitutional scrutiny to apply to laws limiting the Second Amendment right that the court created by a one-vote margin just seven years ago. In two decisions, District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), the court went no further than to recognize a right to possess handguns inside the home for self-defense.
Gun control advocates rightly criticize the decisions as upsetting a long-held view of the Second Amendment as limited to state militias, just as the prefatory clause seems to suggest. But even if the ruling opened a Pandora’s box, it lifted the lid only slightly. In Heller, Justice Antonin Scalia implied that any number of firearms regulations would still pass constitutional muster, including laws prohibiting the possession of firearms by criminals or the mentally ill or the carrying of firearms in sensitive places such as schools or government buildings.
This is much different from the kind of strict scrutiny applied in First Amendment cases: criminals and the mentally ill have free speech rights, and so do students and visitors to government buildings. So, as precedents, Heller and McDonald point to a constitutional analysis that takes full account of the public’s interest in public safety.
In its ruling in New York State Rifle and Pistol Ass’n v. Cuomo, the Second Circuit acknowledged that the New York and Connecticut laws banning certain semiautomatic weapons with specified features burdened a Second Amendment right. But it said the burden was “not severe” because assault weapons are in less common use than handguns.
The court went on to uphold the bans because assault weapons are “disproportionately used in crimes and particularly in criminal mass shootings.” The three Democratic-appointed judges were unanimous in the decision, written by the veteran judge José Cabranes.
Kopel complained that the court misapplied intermediate scrutiny by taking the government’s position at face value and by failing to consider a “less restrictive” alternative. That approach would have upheld the handgun bans struck down in Heller and McDonald, he said.
The Seventh Circuit’s decision in Friedman v. Highland Park also cited the use of assault weapons in mass shootings and then explicitly left the issue to the legislature, not the courts. For the majority, Judge Frank Easterbrook Jr. depicted Heller as a limited decision and declined to plumb its “ambiguous passages” for meaning. “When there is no definitive constitutional rule,” Easterbrook wrote, “matters are left to the legislative process.” Easterbrook’s fellow Reagan appointee Daniel Manion dissented.
The Supreme Court appears to be in no rush to take on the issue. The Highland Park case has been conferenced three times so far in successive conferences in October. One possibility: the court has decided not to hear the case with one or more justices — Scalia and Clarence Thomas most likely— writing a dissent from the denial; word could come as early as Monday [Nov. 2]. With no circuit conflict, the issue may not yet be ripe, but the justices may also be having second thoughts about just how far they want to go with the newfound Second Amendment.
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