Bans

By Blocher, Joseph | The Yale Law Journal, November 2019 | Go to article overview

Bans


Blocher, Joseph, The Yale Law Journal


ARTICLE CONTENTS  INTRODUCTION                                                       310 I. TRIGGERS FOR TRUMPS: BURDENS AND THE NATURE OF JUDICIAL REVIEW  318    A. Rights as Occasional Trumps                                  319    B. Bans on Bans: Prohibitions on Mediums of Expression          324    C. Defining Bans: The Denominator Problem in Takings Law        331    D. Ban-scendental Nonsense and the Functional Approach          337 II. IDENTIFYING AND EVALUATING BANS                                341    A. The Second Amendment's Denominator Problem                   343    B. Functionalism                                                351    C. Formalism                                                    360    D. Purposivism                                                  367 CONCLUSION                                                         375 

INTRODUCTION

The adjudication of constitutional rights is typically understood to involve two steps: a threshold inquiry into the right's applicability, followed by some type of means-end scrutiny. (1) Such scrutiny comes in many different forms depending on the facts at issue. In the equal-protection context, racial classifications trigger strict scrutiny, (2) gender classifications trigger intermediate scrutiny, (3) and nonsuspect classifications trigger rational-basis review. (4) Free-speech challenges implicate different types of review depending on whether the relevant regulation involves commercial speech, (5) content discrimination, (6) a public forum, (7) a nonpublic forum, (8) a limited public forum, (9) alleged libel of a public figure, (10) and so on.

In some instances, however, courts pass right through these first two steps and apply per se rules of invalidity. The application of such rules can be complicated and subject to exceptions, (11) but, generally speaking, in these situations rights behave as Dworkinian trumps, immune to any kind of overt interest balancing. (12) Naturally, this makes it all the more important that the triggering conditions for such rules be carefully demarcated. (13) Sometimes, the condition is constitutionally specified: the government may not ban jury trials in all criminal cases, for example, even if doing so would satisfy strict scrutiny. (14) Forbidden government purpose can also serve as a triggering condition, (15) as in the case of racial animus (16) and viewpoint discrimination. (17)

Another trigger, at least for some constitutional rights, is the conclusion that a regulation constitutes a total prohibition on some aspect of the right--a ban on a constitutionally protected activity or item, for example. The "total" taking of property is one such example; a ban on the productive use of property automatically requires just compensation. (18) Likewise, some courts have held that the Second Amendment categorically forbids prohibitions of an "entire class of arms." (19) And the Supreme Court has, by its own account, "voiced particular concern with laws that foreclose an entire medium of expression," (20) frequently striking down such laws without applying scrutiny. (21) Bans, then, are clearly constitutionally impermissible, at least in some cases. But what makes a regulation a ban? What makes yard signs in residential neighborhoods "an entire medium of expression" (22) or semiautomatic rifles a "class of arms"? (23) And why should a ban be per se invalid?

The question of how to describe a law--whether as a ban, a regulation, or merely an incidental burden--surfaces throughout constitutional law. And yet the Constitution does not always identify the baseline or denominator against which that impact should be measured. If the federal government forbids travel from eight named countries that are more than ninety percent Muslim, but that together represent less than ten percent of the world's Muslim population, is that restriction a presumptively invalid "Muslim ban"? (24) If a state law effectively prohibits all economically beneficial use of a piece of property, does that constitute a total taking of the lot? …

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