Last week, Justice Thomas dissented from the Court’s denial of certiorari in the Second Amendment case Jackson v. San Francisco. Joined only by Justice Scalia, Thomas argued that San Francisco had adopted a firearm regulation substantially identical to the one struck down in Heller v. District of Columbia. The most interesting feature of the case was Thomas’s allegation that the decision below is an example of a much broader pattern. According to Thomas, “lower courts, including the ones here, have failed to protect” the right to bear arms and so have drained Heller of practical effect. If Thomas is right, then Jackson provides an important example of what I’ve called “narrowing from below”—that is, of lower courts narrowing higher-court precedent.
San Francisco generally prohibits people from having handguns in the home unless the weapons are “carried on the person” or stored in a locked container. In Jackson, a group of gun owners argued that the San Francisco law burdened their ability to defend themselves. While sleeping, for instance, private firearm owners must lock their weapons. And if an intruder attacked in the night, then a gun owner may have to spend precious time unlocking her firearm. One of Thomas’s examples involved a 79-year-old woman who is concerned about having to find her glasses to unlock her weapon before using it in self-defense.
In arguing that the Court should have granted review, Thomas conceded that there was no conflict in the courts of appeals. To deal with that shortcoming, Thomas pointed toward a less common basis for granting certiorari: a conflict with Supreme Court precedent. To wit, Thomas contended that “[t]he decision of the Court of Appeals is in serious tension with Heller.” Thomas accordingly argued that the Court should have granted review “to reiterate” the reasoning of Heller.
To support that claim, Thomas pointed to broad language in Heller, such as its statement that the Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” More generally, Thomas pointed out that core burdens on constitutional rights tend to trigger judicial scrutiny, so Heller can be understood to require narrow tailoring of any burden on use firearms for self-defense within the home. If judged by that standard, the San Francisco law seems over-inclusive. The most powerful relevant interest involves firearm misuse by children, but the San Francisco regulation applies categorically, even to gun owners who live alone or without children.
Thomas also advanced a related but much broader point: the lower courts have generally given Heller a cold reception. As Thomas succinctly put it: “Despite the clarity with which [Heller] described the Second Amendment’s core protection for the right of self-defense, lower courts, including the ones here, have failed to protect it.” The gun owners drilled the same point in their filings. In fact, their petition for certiorari included a heading bemoaning “The Lower Courts’ Continued Resistance To Heller.” (A prior petition, also filed by Paul Clement and Erin Murphy, invoked the civil rights era by asserting that lower courts were engaged in “massive resistance” to Heller.) Notably, San Francisco’s opposition brief noted that a slew of prior certiorari petitions had made similar claims—all without success.
If Thomas is right, would that mean that lower courts have effectively overruled Heller, despite the widely shared assumption that they lack authority to “underrule” higher-court precedent? That conclusion seems too strong. No lower court has sustained a law just like the one that Heller invalidated, and most of the firearms regulations that have been sustained fall comfortably within Heller’s gray zone. It’s harder to say that about San Francisco’s law, but even that measure required that firearms be kept on one’s person or in a locked container, whereas the law in Heller required that handguns be kept inoperable.
But even if lower courts aren’t overruling Heller, Thomas has made a plausible case that they are narrowing it from below. Heller explicitly left a great deal undecided and so afforded an enormous amount of room for reasonable interpretation. If they had been so inclined, the courts of appeals could have run with the strong language in Heller and substantially restricted constitutionally permissible firearm regulation. Alternatively, the courts of appeals had the option of reading Heller more narrowly, as more akin to a one-off or the proverbial “ticket good for one day only.” As it happens, the courts of appeals have so far tended toward the second option, invalidating only very few firearms regulations. As a result, Heller-as-narrowed-from-below is starting to seem like a mostly symbolic victory for gun rights. For a somewhat similar example with a difference ideological valence, Boumediene v. Bush has likewise arguably been narrowed from below, without any response from the Court.
The lower courts’ reaction to Heller has real consequences—and not just in the courts of appeals, but in the Supreme Court as well. By more or less uniformly reading Heller narrowly, lower courts have avoided the kind of disruptive holdings that trigger Supreme Court review. And while narrowing from below may have created disagreements on reasoning or standards of review, circuit splits on results are what most attract the Court’s attention. As a result, the conventional criteria for cert may never be met. So in this context, narrowing from below acts a form of agenda influence—or a weak form of agenda control—whereby lower courts affect the Supreme Court’s docket.
There is a certain irony in the lower courts’ reaction to Heller. When dissenting in United States v. Windsor, Justice Scalia saw same-sex marriage on the horizon and so implored lower courts to resist the apparent trend of the Court’s decisions. I’ve argued that this plea essentially asked lower courts to narrow from below. But that is not what happened. Instead of focusing on Windsor’s discussion of federalism, the lower courts chose to read Windsor as a broader holding regarding individual rights. Indeed, many lower courts did so while extensively quoting Scalia’s dissent and its predictions of how the Court would rule. The result was to bring same-sex marriage back to the Court—and in a strong position to prevail. So, perhaps ironically, lower courts have declined to heed Scalia’s call for narrowing in Windsor while narrowing Scalia’s own opinion in Heller.
In other contexts, too, narrowing from below exerts agenda influence in favor of Supreme Court review. Interestingly, the lower court decision in Heller itself supplies an example. To rule as it did, the DC Circuit in Heller had to interpret an earlier Supreme Court precedent relatively narrowly—and perhaps more narrowly than it is best read. Of course, the DC Circuit could in principle have declared itself bound by Supreme Court precedent and then argued in dicta that the relevant Supreme Court case law was wrong. But that dicta-based approach wouldn’t have demanded higher-court review. By contrast, the DC Circuit’s arguable narrowing from below allowed it to make a disruptive and clean split, thereby catapulting the Second Amendment onto the Court’s docket.
As far as Heller goes, there are two ways forward from here–and Justice Thomas’s attempt to show what Heller has become in the lower courts plausibly sought to increase the odds of both. First, the Supreme Court could leap into action and impose a relatively broad reading of Heller, even in the absence of a circuit split. That assertive approach might require a deviation from the normal certiorari criteria and would also run counter to the collective judgment of the lower courts. This will eventually happen if, but only if, a majority of the Court is committed to a broad reading of Heller. Second, an intrepid court of appeals could exert a form of agenda influence by reading Heller broadly and invalidating another local firearms regulation—much as the DC Circuit did in Heller itself.
But when, if at all, is narrowing from below legitimate? In my past work on narrowing, I’ve bracketed that key question. This summer, I’m working on a larger piece on the subject and so would be especially grateful for comments on your most or least favorite instances of narrowing from below.
First posted on Prawfs.