Justice Breyer continued: The majority rejected my dissent not because I proposed using means-end scrutiny, but because, in its view, I had done the opposite. In its own words, the majority faulted my dissent for proposing “a freestanding ‘interest-balancing’ approach” that accorded with “none of the traditionally expressed levels [of scrutiny] (strict scrutiny, intermediate scrutiny, rational basis).” Id., at 634 (emphasis added).
The majority further made clear that its rejection of freestanding interest balancing did not extend to traditional forms of means-end scrutiny. It said: “We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach.” Ibid. To illustrate this point, it cited as an example the First Amendment right to free speech. Id., at 635. Judges, of course, regularly use means-end scrutiny, including both strict and intermediate scrutiny, when they interpret or apply the First Amendment. See, e.g., United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 813 (2000) (applying strict scrutiny); Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 186, 189–190 (1997) (applying intermediate scrutiny). The majority therefore cannot have intended its opinion, consistent with our First Amendment jurisprudence, to be read as rejecting all traditional forms of means-end scrutiny.
As Heller’s First Amendment example illustrates, the Court today is wrong when it says that its rejection of means-end scrutiny and near-exclusive focus on history “accords with how we protect other constitutional rights.” Ante, at 15. As the Court points out, we do look to history in the First Amendment context to determine “whether the expressive conduct falls outside of the category of protected speech.” Ibid. But, if conduct falls within a category of protected speech, we then use means-end scrutiny to determine whether a challenged regulation unconstitutionally burdens that speech.
This case highlights how a change of Supreme Court Justices can lead to significant changes in the law. In Heller, a razor thin 5-4 majority ruled against a per se prohibition of handgun possession in the home. With all three of the judges who joined Justice Breyer in Heller no longer being on the Court, there was more support here for a right to carry handguns in public then there was a right to keep one in a private home just 14 years earlier.
