One of these things is not like the others: Heller, Graham, Kennedy and Booker

The title of this post is inspired by an interesting footnote in the interesting dissent by Judge Kavanaugh in the interesting DC Circuit Second Amendment ruling yesterday (first blogged here).  As readers of any TV generation should know, I am making reference to a classic Sesame Street segment (if you want hum along, go here or here) as a way to set up this interesting insight and discussion from Judge Kavanaugh in footnote 3 near the start of his lengthy dissent:

Heller was similar in its overarching practical and real-world ramifications to recent Supreme Court decisions such as Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729 (2011); Graham v. Florida, 130 S. Ct. 2011 (2010); Kennedy v. Louisiana, 554 U.S. 407 (2008); and Romer v. Evans, 517 U.S. 620 (1996).  Those decisions disapproved novel or uncommon state legislative efforts to regulate beyond traditional boundaries in areas that affected enumerated individual constitutional rights — California’s law banning sale of violent video games, Florida’s law permitting life without parole for certain juvenile crimes, Louisiana’s law permitting the death penalty for certain rapes, and Colorado’s law prohibiting gay people from receiving protection from discrimination.  Because those laws were outliers, the decisions invalidating them did not cause major repercussions throughout the Nation.  Heller was a decision in that same vein, in terms of its immediate practical effects in the United States.  By contrast, of course, some Supreme Court decisions interpreting the Constitution’s individual rights provisions not only are significant jurisprudentially but also have substantial practical impacts on common federal or state practices.  See, e.g., Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009); Arizona v. Gant, 556 U.S. 332 (2009); United States v. Booker, 543 U.S. 220 (2005).  Heller was not a decision of that kind.

As a descriptive matter, Judge Kavanaugh is spot on in noting that many of the most high-profile modern SCOTUS constitutional rulings involved invalidation of a "novel or uncommon" and "outlier" piece of state legislation, while a few others upset more common criminal justice practices.  (Thus, the first answer to the Sesame Street question posed above is Booker, which Judge Kavanaugh rights asserts was more disruptive of traditional and common practices than Heller or Graham or Kennedy.)  Critically, though, Judge Kavanaugh goes on to develop a jurisdictional approach to the Second Amendment based in the idea that the novelty or outlier status of any gun regulation makes it constitutionally suspect. I am tempted to call this a Sesame Street approach to the Second Amendment: if a particular jurisdiction's gun regulation is not like a lot of others, then it is (presumptively?) unconstitutional.

Of course, it make plenty of textual sense to assert that a novel or uncommon punishment is constitutionally suspect given the Eighth Amendment's prohibition on "cruel and unusual punishments."  But it is hard to see just where and how a presumption against novel gun regulation finds expression in the text of the Second Amendment's prohibition on infringements of the right to keep and bear arms.  Moreover, there is a competing constitutional tradition (based in federalism and the decentralization of power) to praise and protect efforts by individual states to try a unique approach to regulation in order to foster a laboratory for legislative innovation.

That all said, I find myself somewhat drawn to this Sesame Street approach to the Second Amendment, in large part because of its super-majoritarian quality and practical convenience.  However, I suspect others may see more virtues than vices in Judge Kavanaugh's jurisprudential approach.  Gosh knows this approach has proved controversial in the Eighth Amendment context, and there is has considerably more textual support than in the Second Amendment setting.