Lower courts are stumbling over the Second Amendment. Badly.

In its deeply problematic 2008 decision District of Columbia v. Heller, the Supreme Court’s (then) five-justice conservative majority declared for the first time that the Second Amendment protects an individual right to possess a gun for purposes of self-defense.  One of many reasons why the Heller decision was problematic was that the majority opinion, written by Justice Antonin Scalia, provided almost no guidance to lower courts regarding how to apply the new constitutional right the Court was announcing.

Heller’s professed methodology was originalist:  the Court recognized an individual Second Amendment right on the ground that, according to the five-justice majority, the Amendment was understood to protect such a right when it was ratified in 1791.  One difficulty with this methodology is that it makes it very hard to apply the Amendment to modern issues, unforeseen by the Framing generation.  How (for example) would that generation have applied the “right … to keep and bear Arms” to semiautomatic assault rifles, or to persons on the terrorist watch list?  Because these particular problems were unknown in the late eighteenth century, there is no on-point “original understanding” to discover.  And because the originalist methodology currently in vogue purports to render irrelevant the purposes or values the Amendment was designed to serve, judges who profess faith to originalism cannot refer to these purposes or values in applying the Amendment to contemporary problems.

This interpretive obstacle was compounded by two additional features of Heller.  First, the Court failed to specify the type of scrutiny that would apply in future Second Amendment challenges.  For most constitutional rights, the Court has developed different levels of means-ends scrutiny for different kinds of laws that affect the right.  For example, under the First Amendment’s Free Speech Clause, the Court applies “strict scrutiny” to laws that regulate speech based on its content, striking down a law unless it is “narrowly tailored” to serve a “compelling” government interest; it applies the less-demanding “intermediate scrutiny” to laws that regulate speech in a content-neutral way (e.g., noise ordinances or laws requiring a parade permit).  Means-ends scrutiny provides some guidance to lower courts, relieving them from having to make an all-things-considered judgment about the validity of a law in every case.  In Heller, however, the Court offered no instruction regarding what level or levels or scrutiny should apply to laws restricting gun possession.

Second, the Heller Court, despite its professed originalism, acceded to modern realities by acknowledging that its decision had limits.  “[N]othing in our opinion,” Justice Scalia wrote, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”  The logic behind these exceptions, however, was not explained by the Court.  Were these “longstanding prohibitions” simply outside the scope of the Second Amendment?  If so, why?  Or did these examples represent cases in which the Second Amendment right is outweighed by pressing government necessities under some version of means-ends scrutiny?

The product of these foundational uncertainties in Heller has been a predictable struggle in the lower federal and state courts to make sense of the Second Amendment as it plays out across a wide variety of contexts.  To some degree, this process of messy case-by-case clarification is an inevitable part of our constitutional system; it occurs every time the Supreme Court issues a groundbreaking constitutional decision.  And indeed it is exciting, in its way, to watch courts grapple with the task of forging doctrine around a newly minted constitutional right.  Unfortunately, however, the result so far has often been decisions that are even more normatively troubling and conceptually incoherent than Heller itself.

Consider two cases decided within the past month by en banc federal Courts of Appeals.  (En banc means all active judges of the court participated in the decision of the case, rather than the three-judge panels in which Courts of Appeals typically render decisions).  In Binderup v. United States Attorney General, a fragmented Third Circuit held that a federal statute prohibiting the possession of firearms by convicted felons violated the Second Amendment rights of two men who had been convicted of relatively minor crimes many years ago.  And in Tyler v. Hillsdale County Sheriff’s Department, an even-more-splintered Sixth Circuit ruled that a federal ban on gun possession by any person “who has been adjudicated as a mental defective or … committed to a mental institution” violated the Second Amendment as applied to a man who had been involuntarily committed for a short time as a juvenile.

One serious problem with both Binderup and Tyler was the bewildering variety of views expressed by the judges in each case.  In Binderup, the fifteen judges of the en banc Third Circuit divided into three overlapping opinions, none of which commanded a majority of the bench.  Not to be outdone, the sixteen Sixth Circuit judges in Tyler split into no less than eight separate opinions with no majority.  In each case, shifting coalitions of judges disagreed about how to determine whether the plaintiffs and their conduct fell within the “unprotected” categories listed in Heller; about whether a finding that the plaintiffs’ conduct was protected by the Second Amendment required a per se ruling in their favor; about the level of means-ends scrutiny to be used in evaluating the statutory prohibitions in question; and about whether the level of scrutiny (whichever it was) should be applied to the statute as a whole or only to the enforcement of the statute against the plaintiffs.  En banc rulings are supposed to clarify the law within a particular federal Circuit, but both Binderup and Tyler had the unhappy result of making the law even more confusing than it had been before they were decided.

Nor was the discord and confusion generated by these decisions unique in the post-Heller Second Amendment case law.  As a November 2015 Justice Department memo illustrates, judges across the country have disagreed on precisely the issues that flummoxed the Third and Sixth Circuits in these recent cases.

At least as troubling as the incoherence of Binderup and Tyler was their bottom-line result:  each case in effect created personalized constitutional exemptions from the enforcement of federal firearms laws.  A majority in each of these decisions ruled that federal bans on gun possession by categories of presumptively dangerous people – convicted felons in Binderup, involuntarily committed mental patients in Tyler – could not be applied to the particular plaintiffs in question without violating the Second Amendment.  The courts did not say that these gun regulations on the whole were unconstitutional – nor could they, given the obviously compelling government interest in keeping guns out of the hands of dangerous criminals or the seriously mentally ill, an interest that is only underscored by the daily news headlines.  Instead, these courts in essence ruled that any given felon or mental patient is entitled to argue in court that otherwise valid gun regulations should not apply to him, because of some fact about his background that suggests he is not truly “dangerous.”

This kind of individualized “as applied” challenge to an otherwise valid legal rule is almost unheard-of in other areas of constitutional jurisprudence.  Indeed, highly individualized challenges have been explicitly rejected by the Supreme Court in several analogous contexts, including in the area of religious liberty jurisprudence under the First Amendment’s Free Exercise Clause.  And there are good reasons for disfavoring them.  Individualized rulings threaten to turn general laws into Swiss cheese, riddled with arbitrary holes in which they cannot be enforced against particular people or categories of people.  They allow courts to overrule elected legislatures on intensely empirical and predictive questions, like who is too dangerous to possess a gun.  And they invite a flood of costly litigation to determine whether, in each of potentially thousands of cases, an individual’s particular circumstances entitle her to a special carve-out from laws that others must obey.

Until the Supreme Court brings more clarity to Second Amendment doctrine, however, the lower federal and state courts will continue to generate incoherent decisions like Binderup and Tyler.  Among other things, the high Court needs to determine whether individualized Second Amendment exemptions are permissible or required; whether there are in fact entire categories of people (e.g., felons) or gun-related conduct (e.g., carrying assault rifles) that fall outside the Amendment’s protections; and the standard by which to assess the great many federal, state, and local laws that in some way affect gun possession.  Of course, the current Court is deadlocked on most hot-button issues between four deeply conservative and four relatively centrist members (with occasional crossover votes by Justice Kennedy from the first group and Justice Breyer from the second).  A structurally deadlocked Court is not likely to take any important constitutional cases, under the Second Amendment or otherwise, until the deadlock is broken.  This fact highlights the already salient significance of this November’s presidential election, which will determine, among a great many other important matters, how the Court eventually shapes Second Amendment doctrine.

Non-elite law schools in the 21st century: the business school model

I’ve had occasion to do a lot of thinking lately about the future of American law schools, particularly the vast majority of them that can’t be considered “elite” schools.

It’s old news that times have been tough in American legal education over the past six or seven years.  Almost every non-elite American law school is now tuition-driven, relying primarily on its own tuition revenues for its operating expenses.  And at most of these schools, the vast majority of tuition is generated by the JD program.  But this model is under heavy strain, thanks to a confluence of factors including heightened competition among law schools, declining JD enrollments, and increasing operating costs.  Some of these trends may ease somewhat over time, but none is likely to reverse course in the foreseeable future.

The most salient trend is declining demand for legal education.  Applications to U.S. law schools have plummeted since 2010 and are only now beginning to level off at less than two-thirds of the 2010 volume.  Most law schools have had to respond by reducing enrollment, admitting students with lower credentials, or both.  The former strategy has a severe impact on a law school’s budget, while the latter harms bar-passage and employment rates.

In light of these developments, how can American law schools thrive – indeed survive – over the next several decades?  Most of them, I believe, will have to pursue one or more of four strategies.

A few elite schools will prosper simply because they are elite and demand for their degrees therefore will remain high.  Clearly this path is not open to most of the more than 200 ABA-accredited institutions.

A handful of schools will cultivate a market niche that saliently distinguishes them from the competition.  But while schools can and should develop distinctive programs, there are relatively few specialty areas that are both prominent enough to attract large numbers of students and stable enough to withstand changing market conditions.

A few other law schools will respond by drastically lowering JD admissions standards, admitting most or all applicants who are willing to pay.  This path, however, is both ethically problematic and likely to be foreclosed by anticipated ABA or federal government regulations measuring outcomes such as bar-passage rates.

The large majority of non-elite American law schools, then, will have one basic strategy for success in the twenty-first century marketplace, the particulars of which will vary substantially from school to school.  I will call this strategy the “business school model.”  Compared to law schools, most U.S. business schools are more closely integrated with their parent universities; they are more innovative in the educational products they provide and in how they deliver them; and they are more diversified in the array of degrees and other academic products they offer.  Non-elite American law schools, I believe, will have to become more like business schools in these respects to thrive in the twenty-first century.

Integration.  To prosper in the coming decades, those few law schools that are not yet embedded within a university should seek to do so, and embedded law schools should look to enhance connections with their universities in creative ways.  Close integration with a parent institution is advantageous, financially and otherwise, particularly in perilous economic times.  Closely integrated law schools can cut costs by sharing administrative and instructional functions with their parent universities and by piggybacking on university marketing, technology, foreign programs, and other assets.  They can offer a broader spectrum of academic options to their students and take advantage of a built-in college-to-law-school pipeline.  And with the university’s resources as a backstop, they typically have greater leeway to adjust or retool in response to changing market conditions.

Innovation.  Law schools will need to embrace innovation in order to thrive in the years ahead.  On the revenue side, American law schools must develop new products to sell (more on this below) and must penetrate new markets for their products, particularly overseas.  On the cost side, law schools must readily take advantage of advancing technology to deliver their products more cheaply.  For example, within a decade or so it will be feasible to have a quality law-school classroom experience in an all-digital environment.  Adopting this technology when it arrives will allow law schools to substantially reduce a significant component of their costs (in the form of bricks-and-mortar classroom facilities) and to enroll students with only limited regard for geographic limitations.  Early adopters will have a substantial market advantage.

Diversification.  Increasingly, non-elite law schools will succeed by diversifying the array of educational products they offer.  While the cost-benefit analysis will differ from school to school and from program to program, it is likely that most law schools can enlarge their tuition revenues in a cost-effective way by offering alternatives to the expensive, all-or-nothing JD.  Law schools should look for opportunities to add nontraditional degree programs that are tailored to regional demand, that leverage existing expertise and capacity where possible, and that take full advantage of synergies with the parent university.  These might include undergraduate degree programs, joint degree programs, graduate programs in non-law fields with close affinities to law (such as public policy), and perhaps limited license legal technician programs like the one currently being piloted in Washington State.

As always, I welcome your thoughts.