Narrowing Second Amendment Precedent From Below

Last month, Justice Thomas wrote (another) dissent from denial of certiorari in a Second Amendment case, Friedman v. City of Highland Park. This time, Thomas expressly warned of lower court “noncompliance” with the Court’s case law. Friedman raises a question taken up in my new draft paper: do lower courts have some authority to narrow Supreme Court precedent?

But first, a few definitions. "Narrowing" occurs when a court interprets a precedent not to apply where the precedent is best read to apply. By contrast, "distinguishing" occurs when a court interprets a precedent not to apply where the precedent is best read not to apply. Narrowing is also different from overruling or partial overruling, which accept that a precedent applies to the facts at hand but then decline to follow the precedent in whole or in part based on another, more fundamental source of law. I've previously argued that the Supreme Court frequently narrows its own decisions.

When vertical narrowing or "narrowing from below" occurs, courts decline to adopt the best reading of higher-court precedent.  But they are still interpreting precedent and so aren't asserting the power to overrule higher-court decisions. My new paper discusses when narrowing from below is compatible with various theories of vertical stare decisis. For present purposes, we can rely on a rule of thumb: narrowing from below is often legitimate if the higher-court precedent is relevantly ambiguous.

That leads to Friedman. When the case reached the Supreme Court, Justice Thomas wrote a dissent from the denial of certiorari. Joined by Justice Scalia, Thomas lamented that the Court “had refusal to review a decision that flouts two of our Second Amendment precedents.” And, taking a broader view of Second Amendment case law, Thomas complained of “noncompliance” with the Court's precedents.

Thomas was right to feel that lower courts are implementing a narrow view of the Second Amendment rulings in Heller and McDonald. In Friedman itself, the Seventh Circuit basically limited the Second Amendment to weapons used in at the founding, in modern militia, or as now necessary for self-defense. But that restrictive test appears nowhere in the U.S. Reports. And, as Thomas shows, each feature of the Seventh Circuit’s test is in tension with reasoning that does appear in the Court’s Second Amendment opinions. 

Yet it’s hard to say that Friedman or any other leading lower-court decision on the Second Amendment has transgressed clear Supreme Court precedent. (A thought experiment: if the qualified immunity or AEDPA standards for clear Supreme Court precedent applied in Second Amendment cases, would Thomas think that those standards had been met in Friedman?) So Thomas's lament raises a broader question: do lower courts sometimes have authority to narrow ambiguous Supreme Court precedent?  

The lower-court opinions in Friedman illustrate how lower courts might debate about narrowing from below. Instead of insisting that Supreme Court precedent supported him, Judge Easterbrook's majority opinion argued that the relevant precedents “leave matters open” for lower courts and offered only “ambiguous” guidance in the case at hand. Here's the most relevant passage:

Heller and McDonald set limits on the regulation of firearms; but within those limits, they leave matters open. The best way to evaluate the relation among assault weapons, crime, and self-defense is through the political process and scholarly debate, not by parsing ambiguous passages in the Supreme Court's opinions.

In dissent, Judge Manion recognized that the Court’s case law left much uncertain. But he contended that important aspects of the majority opinion had defied “clear” precedent and so adopted a "gerrymandered reading" of Heller and McDonald. This nuanced argument is important because defiance of clear Supreme Court precedent is far more troubling than a decision to set aside an ambiguous message. Here’s the most relevant passage:

Neither Heller nor McDonald purported to resolve every matter involving the regulation of weapons; but they are clear about one thing: the right to keep arms in the home for self-defense is central to the Second Amendment and is not conditioned on any association with a militia. Instead of following this clear principle, the court engages in a gerrymandered reading of those cases to hold directly contrary to their precedents.

In focusing on whether precedent was "ambiguous" or "clear," the above passages suggest that the dispute in Friedman may not have turned exclusively or even primarily on the best reading of Heller and McDonald.  Instead, the the majority and dissent were concerned, at least in part, with whether the Supreme Court's cases unambiguously prohibited the majority's narrow rule of decision. This framing is consistent with the view that lower courts have some discretion to narrow the Court's decisions.

Second Amendment litigation is just one area of law marked by narrowing from below. We’re bound to see much more of it in 2016.