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.