A Small Step For Guns, A Giant Shift In Constitutional Analysis: Did The Supreme Court Rewrite Constitutional Analysis In NYSRPA v. Bruen?
On June 23, 2022, the U.S. Supreme Court struck down New York’s pistol permitting regime as violating the Second Amendment. The regime vested virtually unlimited discretion in police officers and other officials on whether to issue a person a concealed carry permit, and it required applicants to show a special need for self-defense to carry a pistol outside of the home. In NYSRPA v. Bruen, the Supreme Court held that the requirement to show a special need and the unlimited discretion violated the Second Amendment.
In doing so, the Court appeared to rewrite the fundamental principles of constitutional analysis that every lawyer learns in their first year of law school. The rewrite got lost in the politically charged debate about gun control that inevitably followed the decision despite its implications being far more momentous than the Court’s interpretation of the Second Amendment.
Modern constitutional doctrine requires courts to employs a “means-end” analysis to determine whether a government’s action is unconstitutional. First-year law students are introduced to the concept through the famous Footnote Four in United States v. Carolene Products. After President Franklin Deleano Roosevelt reshaped the Supreme Court to preserve his New Deal agenda, the Supreme Court shifted from its Lochner v. New York approach where it confined government legislation to protecting the “public health, safety, and morals” to an approach that presumed the constitutionality of legislatively enacted laws. The Court, however, did not adopt a doctrine of presuming every law was constitutional. Instead, in Footnote Four, it stated that certain laws draw greater scrutiny than others.
Over the ensuing years, the Court developed three “means-end” analyses from this: strict scrutiny, intermediate scrutiny, and rational basis scrutiny. To select an analysis, a Court must first determine what legal rights are at issue.
Strict scrutiny applies when a court determines that a law infringes on a fundamental constitutional right or when a government action uses a “suspect classification” (e.g., race). If a court finds that a fundamental constitutional right or a suspect classification is at issue, the law or action is presumed to be unconstitutional unless the propagating government can demonstrate that the law or action furthers a compelling governmental interests in a narrowly tailored fashion that is the least restrictive means of achieving the interest.
Intermediate scrutiny is really a catch-all scrutiny for legal rights that courts consider important but not important enough to merit strict scrutiny. It has applied to gender discrimination, illegitimate children, mass media scrutiny, and content neutral speech regulation. Until last week, it also applied to gun control. To survive intermediate scrutiny, a law or governmental action must further an important governmental interest by means that are substantially related to the interest.
Rational basis scrutiny applies to any laws or governmental actions that do not implicate a fundamental constitutional right or tickle judges’ fancy enough to fall into intermediate scrutiny. Under rational basis scrutiny, laws and governmental action are presumed to be constitutional if they are rationally related to a legitimate governmental interest. Courts are obligated to imagine any conceivable legitimate governmental interest under this analysis.
Justice Clarence Thomas has long been a critic of “means-end” scrutiny analyses. As fate would have it, he wrote the majority opinion in Bruen and five other justices joined it in full (Roberts, Alito, Gorsuch, Kavanaugh, and Barrett). Thomas leaves no doubt that he is scrapping the standard “means-end” method of constitutional analysis.
He describes the two-step dance as follows:
“At the first step, the government may justify its regulation by ‘establish[ing] that the challenged law regulates activity falling outside the scope of the right as originally understood….’ At the second step, courts often analyze ‘how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right….’ If a ‘core’ Second Amendment right is burdened, courts apply ‘strict scrutiny’ and ask whether the Government can prove that the law is ‘narrowly tailored to achieve a compelling governmental interest….’ Otherwise they apply intermediate scrutiny and consider whether the Government can show that the regulation is ‘substantially related to the achievement of an important governmental interest.'”Bruen, pp. 9-10
Thomas then rejects the two-step dance:
In sum, the Courts of Appeals’ second step is inconsistent with Heller’s historical approach and its rejection of means-end scrutiny. We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”Bruen, p. 15.
Had Justice Thomas stopped there, the Court’s decision could have been reasonably construed as establishing a special method of constitutional analysis for Second Amendment issues. Justice Thomas, however, cited a litany of precedents on free speech, a criminal defendant’s right to confront witnesses, and the separation of church and state to argue that the Court has always required a historical analysis, not a means-end analysis.
Justice Thomas’s argument appears wishful as the Court has employed means-end scrutiny for decades, especially for free speech cases. At the same time, he secured five other justices’ votes for his opinion. While it is easy to dismiss his argument that the Court uses the text and history method for all portions of the Bill of Rights as mere dicta (language unnecessary to the case’s outcome), none of the other majority justices wrote an opinion calling for a means-end scrutiny analysis even though they wrote concurring opinions.
Thus, while Bruen advanced the Second Amendment and protected gun rights, its true importance could lie in its rejection of “means-end” scrutiny analysis. If Thomas’s analysis holds, the future of constitutional litigation will lie in historical analysis. Lawyers will be required to identify historical bases for claimed rights, and governments will be forced to demonstrate historical support for their proposed regulations. In other words, modern constitutional analysis will shift from methodical tests to detailed historical analysis.
The shift will fundamentally alter the American constitutional landscape if it has actually occurred. I will get ready to relearn constitutional litigation. If you’re a lawyer, you should too.