The Second Amendment in the Tenth Circuit: Three Decades of (Mostly) Harmless Error:
Every year the Denver University Law Review publishes a Tenth Circuit Survey. In the forthcoming issue, the lead article is my examination of the Tenth Circuit's record on the Second Amendment issues. My conclusion:
The Tenth Circuit's three-decade record of Second Amendment cases was a disgrace to the rule of law.VC contributors have often posted thoughtful comments which have improved my draft articles. I look forward to similar comments here.
It was not a disgrace for wrong results. Almost all the decisions involved restrictions on narrow classes of especially dangerous weapons, or the prohibition of gun ownership for people who had proven themselves to be dangerous. Most of these results are presumptively valid under Heller, and most of the rest are in no worse than a gray zone of validity. Even pre-Heller, almost all the decisions could, as Judge Kelly observed in Parker [a 2004 case, in which a concurring opinion by Judge Kelly criticized the overbreadth of previous Tenth Circuit opinions on the Second Amendment], have been written on the narrow grounds of upholding legitimate, narrowly tailored restrictions on the Second Amendment.
The Tenth Circuit jurisprudence was not a disgrace because it adopted a militia-only theory of the Second Amendment....The Tenth Circuit's jurisprudence cannot be called a disgrace because it ultimately ended up on the "4" side of a 5-4 Supreme Court decision. Although militia-only was a weaker theory, it was not a preposterous theory, or a theory bereft of any intellectual support.
The reason that the Tenth Circuit's Second Amendment cases are a disgrace is that they barely had any reasoning. If you take everything that the Tenth Circuit wrote about the Second Amendment in Oakes (1977) and the 25 years of cases thereafter, the whole thing combined would not add up to a mediocre student Note in a secondary journal at an unaccredited law school.
Even the lowliest of student Notes must at least attempt to address the most important arguments on the other side. Especially when those contrary arguments come from the U.S. Supreme Court's explication of the very text that is at issue. Or from enactments of the Congress of the United States. Or from the Yale Law Journal, the Michigan Law Review, and or Larry Tribe, Akhil Amar, and Sanford Levinson. A mediocre student Note would not address all these sources, but it would address at least a couple. The Tenth Circuit spent a quarter century pretending there were no serious contrary authorities.
Nobody forced the Tenth Circuit to propound a grand theory of the Second Amendment without being able to make a serious intellectual defense of the theory. As Judge Kelly pointed out, almost all the Second Amendment cases that came to the Tenth Circuit could have been handled simply by addressing whether they involved legitimate restrictions on the right. It was a deliberate choice of the Tenth Circuit to reach out in Oakes, and to, in effect, declare that an entire Amendment to the Bill of Rights was a nullity, insofar as its protection of 99.9% of the American people.
It was the choice of the Tenth Circuit to continue to declare its Second Amendment decisions in the sweeping, nullificationist terms of Oakes. If the Circuit were determined to proceed on such a broad front, then the Circuit owed the American people a real justification of its actions. Not the pompous ipse dixit of Haney, Oakes, and the other cases, but a serious explanation. An explanation which addressed the best arguments on the other side.
That the Tenth Circuit never did so perhaps reflected a lack of intellectual self-confidence. The Tenth Circuit is a good example of Sanford Levinson's observation that some elements of the legal elite refused to intellectually engage with the Second Amendment because of "a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even 'winning,' interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation."