By Mike McDaniel
On March 10, 2014, my article analyzing the constitutional viability of magazine limit laws, Do Magazine Limits Pass The Constitutionality Sniff Test?, was posted. Several readers took issue with one assertion: “In deciding Heller, the Supreme Court made clear that analysis of Second Amendment issues should be based on ‘strict scrutiny,’ which is a far higher standard than Volokh would apparently apply.” Reader SAS 2008’s comment was reasonably representative: “As others have pointed out, Heller did not define what level of review was appropriate for these cases. I hope Mike or someone corrects the article. People should not have to read the comments to find out that there are factual errors in the original article.” . . .
Cornell’s Legal Information Institute defines strict scrutiny thusly:
Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws. To pass strict scrutiny, the legislature must have passed the law to further a ‘compelling governmental interest,’ and must have narrowly tailored the law to achieve that interest…
For a court to apply strict scrutiny, the legislature must either have significantly abridged a fundamental right with the law’s enactment…
Those mentioning this issue are correct in at least one sense: the Heller decision (PDF available here) does not specifically say that the majority’s opinion was done via strict scrutiny. This passage — appearing in the syllabus — comes closest to addressing that issue:
The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of ‘arms’ that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster [emphasis mine].
The majority reiterated that observation in the body of its opinion:
Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,’ 478 F. 3d, at 400, would fail constitutional muster.
Since the court upheld the Second Amendment in striking down DC’s de facto handgun ban noting that it could not stand under any standard of scrutiny (there are three), it seems clear that the Heller case, and any case that involves a fundamental, unalienable right, would not be decided by any lesser standard than strict scrutiny. Surely the right to keep and bear arms includes the right to an effective and functional arm. Anything less reduces firearms to fashion accessories, and there is no fundamental right to accessorize one’s clothing.
Heller addressed this point in striking down requirements that handguns in the home be rendered essentially unusable for lawful purposes. And while Heller also observed that no right is unlimited, presumably at some point limitations on the amount of ammunition one may carry in a constitutionally protected arm must run afoul of the Constitution.
In effect, a lesser standard of scrutiny–intermediate scrutiny or the lowest: rational basis–would have the effect of overruling the most rigorous standard, and could render the Second Amendment a cosmetic exercise only. One could keep and bear arms, one just couldn’t effectively use them in any real sense. The majority did speak to lesser standards, such as that suggested by Justice Breyer, who invented a novel type of scrutiny. Since his standard has never before been used, it might be even lower on the scale than a rational basis analysis:
JUSTICE BREYER moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering ‘interest-balancing inquiry’ that ‘asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests…’ After an exhaustive discussion of the arguments for and against gun control, JUSTICE BREYER arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.
The majority makes clear that enumerated rights–core protections–are deserving of the highest level of judicial analysis:
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.
Surely, this removes “rational basis” and similar forms of analysis from the table. The majority did not stop there, however:
Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an ‘interest-balancing’ approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which JUSTICE BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.
Again, the language of the court is hardly consistent with analysis of the Second Amendment being conducted under any but the highest level of scrutiny. While some of the court’s language in Heller is less than fully comforting to many Second Amendment scholars and advocates, the degree of seriousness with which it takes the right is encouraging:
We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
I do not intend to engage in Clintonesque parsing of “strict scrutiny.” It does, however, seem clear that the Court, in Heller, applied the most rigorous analysis in its decision: strict scrutiny. While the Heller minority would wish otherwise, it seems reasonable to believe that future analysis of issues having fundamental Second Amendment implications would also be subjected to such rigor.
Obviously, should the balance on the court shift to those who would decide the fate of fundamental, unalienable rights on the whims of Progressive policy, all manner of lesser standards will be applied–or invented–to ensure proper progressive outcomes. Such a court might leave one’s ability to carry a handgun intact, but their analysis would allow any restriction imaginable, reducing all to Barney Fife with a single cartridge in his shirt pocket. That kind of scrutiny would be strict indeed–and deadly.
Mike’s home blog is Stately McDaniel Manor.