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.
Well, I’m afraid that strict scrutiny was most definitely not applied in Heller. Indeed, the biggest open question today in 2A law is exactly what level of scrutiny the courts are supposed to apply. Literally nobody seems to know.
I don’t hold myself as an expert on Constitutional law, but I was just two weeks ago the keynote speaker at the Charlotte Law School’s symposium on gun law, and an entire panel of real, live Constitutional law experts had no idea what the answer to that question was.
On the positive side, most of them knew what it SHOULD be–like any other Constitutional right, it should be strict scrutiny. The tripping point, apparently, is that it’s quite obvious that pretty much every gun control law ever written must fail if subjected to the strict scrutiny standard.
So, I figure when they’re digging my final hole, that’s where the law will be at. 🙂
–Andrew, @LawSelfDefense
^ This.
I didn’t see anything in Heller which stated that strict scrutiny was/is necessary. The majority opinion hinted at it, but they certainly did NOT say it.
And that brings up a monumentally important question. Why didn’t they say it? Why such a mealy-mouthed speech about enumerated rights? I think they were afraid to say it because it would provide the legal basis to strike down almost all gun control laws.
Why didn’t they say it?
Because they couldn’t get a majority to agree to it.
Goddam Kennedy.
The problem is one of culture, not law.
Culture determines politics, and politicians then determine the law. This is why a 15 round handgun and a modified 1999 Trans Am are illegal in Los Angeles, but legal in San Antonio Texas.
The problem comes in when justices have to rule against the power base of very large areas, either in population ( think LA) or in area ( think Texas). A strict interpretation of the Constitution means darn near every gun control law written and enacted becomes null and void.
While that’s bad news for the areas invested in those laws, things get worse. Because down the road, it could be argued that if an American citizen has an inalienable right to keep and bear a weapon wherever they may go ( which we do) , that same citizen has an inalienable right to NOT be searched by police, taxed by the Affordable Healthcare Act, or be forced to hire people based on gender or race.
That latter consequence-the total destruction of the leftist nanny state and the modern liberal culture- is why few justices will state the obvious regarding the RKBA, and why I believe the SCOTUS will never take a pro-2A case again within the next decade. The powers that are don’t want to see an attorney argue that if one has the right to carry a handgun, they have the right to refuse police searches without a warrant.
I must disagree with two statements, that the Court will not take another 2A case in the next decaqde, and that the Court has any fear about appellant attorneys arguing the search analogy.
There are at least three separate strands in the phrase “keep and bear arms.” The Court has long recognized the special deference that a person’s home deserved (I cited the case history in the weeks-ago post on no-knock warrants). I do not doubt for a second that the Court is still wrestling with the implications of applying the obviously meritorious strict scrutiny of state encroachments upon freedom from infringements on owning firearms in the home, versus the analysis they will apply to narrowly-tailored encroachments in areas in which a person has, as they say, a reduced expectation of privacy.
Building a majority for an analysis which draws the line against state encroachments applicable outside the home will take herculean effort. The question is whether a majority can find a formula which protects the right to “bear arms” (obviously outside the home) by means of commercial restrictions or by defining conditions under which carry becomes unlawful, i.e. restricting known gang members in a group from carry, or restricting loaded rifles in parades. Who knows where this will take them, but I feel sure it will lay in an elaboration of conditions that rightfully allow encroaching restrictions, rather than any novel restrictions on what it is that may be carried in the general case. I think we’ll have a partial answer before long.
I note that the federal courts, including the Supreme Court, have essentially forced on the US Gay Marriage with all the entitlements and privileges that marriage entails. That action was, plain and simple, legislation. I doubt they lack the stones to lay down a clearer bright line as to what restrictions on carry withstand….whatever level of scrutiny they wish to call what they end up doing.
Frankly, I don’t see how a reasonable “shall issue” permit system — like New Hampshire’s — would be struck down under strict scrutiny.
The G can make a pretty damn good case that it has a compelling interest in keeping the streets as safe as it can, and a permissive shall issue system with limited fees and training furthers that interest in the least restrictive way.
Under strict scrutiny they must also be able to show that their restrictions on a constitutional right are more effective in achieving their stated goal–crime reduction–than would be a less restrictive model.
Does NH, with modest but definite constraints on the right to carry arms, have more or less “gun crime” per capita than VT, with effectively no restrictions on the right to carry arms, not even a restriction on the right of felons to carry arms? What of the other “Constitutional Carry” states? Do they have greater or lesser rates of “gun crime” than more restrictive jurisdictions?
Where’s DC fit on that spectrum? New York City? Chicago? LA? San Francisco?
Strict scrutiny provides a very high bar, indeed.
–Andrew, @LawSelfDefense
I agree, Ralph, and I didn’t make myself very clear. I simply expect the Court to make an analysis which provides the states some ability to restrict carry according to some behavioral or circumstantial facts. Who knows?! For example ‘shall issue’ concealed carry in New Hampshire will survive, but may end up restricted within 1000 feet of an industrial-union strike, or when marching in protest around a church, or whatever class of circumstance the court thinks appropriate. We’ll see.
I think it’s remarkable that you need to point out the 14th amendment’s helpfulness, generally, for gun owners. We (they…) are building a nation bit by bit. Many states did evolve to make federal rights irrelevant as state laws obliterated the ability to exercise those rights. Apparently they stopped teaching this stuff in high-schools. Glad you lay it out, though.
I’m no attorney but I fail to read anywhere in the Second Amendment that a well regulated militia is necessary to a crime reduced state. Not looking for an argument; as a layman, I always understood the 2A to be about deterring and correction of tyranny and invasion, not about crime or safety. Where am I missing how the argument jumps from that to crime?
BTW: Good comments. I learn much from these.
On the whole I concur with your analysis and conclusion vis-a-vis strict scrutiny. However Heller addressed an outright ban. I cannot believe that any “… future analysis of Issues having fundamental Second Amendment ‘implications’…” would require strict scrutiny. Future issues presented that specifically and directly impinge, i. e., deny on a fundamental right would necessarily require strict scrutiny. we may be saying the same thing though.
Point of interest: I am a law-abiding American, natural born. If I moved to Washington D.C. next month would I be able to get a concealed carry permit for my EDC? If not then the Heller decision and the entire SCOTUS is a total load of political BS.
This is ALL red-herring territory. The ONLY thing the SCOTUS should determine in any of these cases is, 1) Does the Second Amendment mean precisely what it says and was intended to say? and 2) Does the matter before the court violate the meaning and intent of the Second Amendment.
Everything else is meaningless political grandstanding. For the supposed most learned legal minds in America to conclude that “…shall not be infringed.” means that the very government that the Second Amendment was intended to allow citizens to protect themselves against and overthrow if necessary, still has the legal right to regulate the terms of the exercise of the right to keep and bear arms, is lunacy.
I quote:
The ONLY thing the SCOTUS should determine in any of these cases is, 1) Does the Second Amendment mean precisely what it says and was intended to say? and 2) Does the matter before the court violate the meaning and intent of the Second Amendment.
What the hell do you think they’re doing?
They are obviously using a different English dictionary than the rest of us in order to extract from very clear terminology a meaning of “…shall not be infringed.” that includes: “but,” “except for,” and “when regulation serves the interests of the state.”
They are nine men and women appointed to exalted legal positions in the Judicial branch of government by the President of the United States and approved by politicians in the Senate. They each have their own political opinions and were generally appointed to their post specifically because of those opinions in order to interpret the cases before them not according to the Constitution, but according to the interpretation of the Constitution the men appointing them hoped would result.
They are men (and women) subject to the same prejudices and personal pettiness as all other men. They are not gods and their words and judgment are NOT sacrosanct.
If even one of them sees within the Second Amendment, or any of the Bill of Rights, for that matter, the concept of “except when it serves the interests of the state to modify, mitigate or regulate…” then they are most definitely NOT impartial arbiters of the intent of the Founders who wrote and the states that ratified those first ten amendments.
@Cliff H: I see it the way you have expressed it. It boggles my mind sometimes and it seems like courts and legislators purposefully bend over backwards to ignore the elephant in the room.
Considering that we have had courts of appeals apply intermediate scrutiny to the right to bear outside the home, asserting that strict scrutiny would apply to a magazine restriction is more than a bit hopeful. I know we all believe that is the standard to apply and hope the courts would apply it, but we’ve seen what hope has done for this country lately.
“but we’ve seen what hope has done for this country lately”
What’s hope done for us? Well, hope and a lot of hard work on the political front:
Brought us at least some measure of CCW in ALL 50 states? The utter failure of ANY Federal gun control laws in the aftermath of Sandy Hook?
Given us a US House majority to a relatively young and Tea-party tinted party?
Soon to give the US Senate to a similar group?
Given us Heller? McDonald? Prosser in IL? The 9th Circuit in CA?
Don’t be a doom-and-gloomer. Obama’s the high-water mark of the Progressive fascists. Folks are loving them some Obamacare. The American body politic is reaching for the flush lever even now.
The fighting’s not done. The fight against evil is never done, not on this Earth. But the momentum is shifting wildly to our side.
I look forward to releasing the cavalry. 🙂
–Andrew, @LawSelfDefense
It was meant as a knock on Obama’s Hope and Change campaign theme. I am fairly optimistic about where gun control law is going, but I found this article a bit much. Scalia effectively rejected rational review and the nonsense standard that Breyer was proposing. Intermediate and strict review were both left on the table, and a lot of scholars and courts are vacillating between the two depending on the law being challenged. The courts can be a backstop for us at times, but we have to keep winning the culture war. In the end, the courts always wind up on the same side as the winner of that war.
“I am fairly optimistic about where gun control law is going”
Well, then the rest must follow, surely?
A nation that so eagerly seizes it’s right to bear arms, and indeed so eagerly secures itself with massive quantities of arms and ammunition, can hardly be a nation that allows itself to live under the heel of such as Barack Obama, or any other Progressive fascist.
Our success on the gun rights front is a leading indicator on our coming success on all political fronts. 🙂
And I, for one, am really looking forward to it. 🙂
–Andrew, @LawSelfDefense
Andrew, I’m glad you are hopeful on the gun-rights front. However, to assume the tide has changed in the culture wars strikes me as doubtful. States and the national legislature have defined “marriage” and its legislative preferences as a relationship between a man and a woman. Federal courts have decided that the relationship justifying “survivor” upgrades (often a doubling) of social security payments, tax exemptions to enable a spouse leaving to the other wealth tax free, and so forth, belong …as..a…constitutional protection by right, to a pair of men or a pair of women.
Young people don’t riot against such grotesque legislating based merely on a ‘widespread change of opinion,” because it seems that would be unhip, and they don’t understand the change anyway. The court court have condemned the exclusive handing of benefits to heterosexual couples, and I could accept that as an equal-protection act. Benefits that flow uniquely to married spouses ought really to be aimed at couples who raise children together. Other couples, gay or straight, justify no such special benefits.
With the 2A the court is faced with difficult challenges, but lack of chutzpah isn’t one of them.
you should have read the fine print its “hope FOR change”
Ropingdown,
I’m a young, straight, conservative man. I’m half hispanic, half white, full American. I believe in limited government, low taxes, no gun control, and a free market (including heathcare). But the Republican party’s stance on social issues is holding it back.
If you claim to be a Republican, and you claim that you believe in individual freedom, then I think that you have to go the full nine yards. If you believe in keeping the government away from our money, our guns, and our phone calls, then it is nothing but hypocritical to call for governmental regulation in people’s bedrooms or relationships. Small government means small government. Full stop.
What part of the Republican party platform “call[s] for governmental regulation in people’s bedrooms or relationships”?
Gonna have a hard time getting that tea party tint with Boehner and Mitch sabotaging conservatives candidates that won’t kiss the ring. There needs to be a serious shakeup in leadership, those 2 have got to go.
No one said it would be easy.
Nothing worth doing is easy.
You don’t like Boehner and Mitch, great, work to get them out.
But the fact that we haven’t yet cleared the deck of 100% of the old boy’s network doesn’t mean we’re not winning.
Even after the Japanese unconditionally surrendered on the Missouri, it took years to clean them off all the islands.
Didn’t mean we hadn’t won. Just meant there was mop-up work to do.
–Andrew, @LawSelfDefense
+1000. Much better said here by you than anywhere else, Andrew.
Here we are in 2016 and all of these “assault weapons” bans have been upheld. Now with Scalia’s passing they are all but assured to be upheld thus nullifying the Second Amendment. And our best hope is Donald Trump? I live in NY… I’m never getting my rights back…
Man this blog would be awesome of you had folks like Mike and Andrew writing for it regularly.
RF, get on that!
Andrew did a hell of a job over at Legal Insurrection during the Zimmerman trial, and Mike is an excellent writer and has great perspective.
+1000 I keep Andrews Book right next to me on my computer desk
Very kind of you. 🙂 #blush
I’d be happy to set up a TTAG discount coupon if folks were interested.
Also, if anybody will be at the NRA Annual Meeting, I’ll be there speaking about Stand-Your-Ground, self-defense law generally, and the fecklessness of Progressive fascists. Friday afternoon, three-something, but I think you do need to register for the gun law seminar: http://is.gd/Zx7q25
–Andrew, @LawSelfDefense
I didn’t make the connection between Andrew, Legal Insurrection, and everything I read during the Zimmerman trial until now. Hell yes! Excellent stuff, Andrew.
Thanks for the kind words, John! FYI, I’ll be in Ohio in the weekend of August 2/3 doing numerous Law of Self Defense Seminars all over the state. Come meet in person. 🙂
–Andrew, @LawSelfDefense
I might take you up on that, as well!
With all due respect to the above learned jurists, this is why people hate lawyers.
Dude, you could at least have tossed a lawyer joke in there. 🙂
Everybody hates the lawyers . . . until they need a lawyer. 🙂
–Andrew, @LawSelfDefense
At the moment anyone needs a lawyer, they hate them a little less than they hate cops.
🙂
It’s a basic human instinct to fear things that they don’t understand, and to hate people who actually do.
About half of the delegates to the Constitutional Convention were trained lawyers, so I can understand why low information people might hate lawyers. Lawyers stuck us with that damn Constitution.
I feel much less inclined to chastise those who hate lawyers, because I assume what they hate is the legal process as it currently exists after forty-five years of remarkable change. There is not a complaint among the laity which I haven’t also heard coming from the mouths of fellow attorneys
“Liberal” discovery is abused by corporations in litigation with small-fry. Thousands of actions have been criminalized by the feds. Whimsical bans by the US Congress have been approved, see substances, but passing social security step-ups to gay people has in fact been legislated by the federal courts because the benefits are not seen by the courts as, in the general case, tied to parenting costs…and the legislatures haven’t made that tie either, so complete chaos reigns in benefits cost calculations. Lawyers take the heat because lawyers are the ones who see these same events, use these laws, prosecute these laws, but rarely speak out about them because they are very busy generating billables or chasing promotions. So why not hate bit? I hated the Yankees for less.
Wait, what? You hate the Yankees?
You, sir, are a servant of the Antichrist.
“Everybody hates the lawyers . . . until they need a lawyer.” At which point they learn to hate the other guy’s lawyers.
“One useless man is a shame, two useless men are a law firm, and three or more are a Congress.” John Adams.
Haters gotta hate, right PeterC?
I would accuse Peter of overstating the case in saying “people hate lawyers.” Everyone I know employs them, invites them to parties, consults them before marriage and at its end, and sends their kids to law school if they don’t have the science background for med school.
People hate the complexity of laws today, and the non-stop growth of arbitrary crimes and liability. People ought to hate the legislatures…….but…but…the legislators almost always pass absurd laws because some large or rich constituency demands it. So if people can’t hate the legislators, they ought to seek out and ‘hate’ the special interests who push for the absurd laws.
But surprise, the Peters of the world couldn’t be bothered, in my experience. Your doctors and dentists are ripping you off through the power of moat-building legislation. Your cell phone and cable providers are charging you too much due to municipal monopoly and the government’s desire to give your money to someone else that votes for them.
Time for all-out unwinding of unnecessary criminal laws and privilege-cementing statutes. Just leave my area alone! And your brother’s! Laugh.
Guys, I are a lawyer–or more precisely, were, I let my license lapse after moving into a different field of endeavor. I don’t necessarily hate lawyers, but I certainly understand why a lot of people do.
Yup. I also understand why people don’t vaccinate their children, but I still think they’re idiots.
My two cents is that strict scrutiny should be applied to every issue, starting with whether the legislature is acting legitimately within the scope of article 1 section 8, all the way through all 10 amendments in the bill of rights, and beyond…
Strict scrutiny is trending for the Bill of Rights. But if was applied to everything, few laws would survive. Which might be good, but it might be bad, too.
I believe that strict scrutiny should be applied in every case by the Congress or any other legislative body as to, “Is this law really necessary or are we just grandstanding for votes, money and more political power?”
This conversation seems a tad bit out of my league, (about a mile above my head)but thank you my brain hurts.
Agreed, my brain hurts from trying to understand the article and comments.
The Court in Heller didn’t announce the standard of review that the majority was applying (except to rule out “rational basis” and Breyer’s half-assed test), so it’s extremely presumptuous of any legal writer to tell the Court what it said or meant to say.
I believe that the majority did not announce a standard of review because there was no consensus about it among the five Justices. It’s likely that Kennedy went along with the other four because he wanted to kick the DC law but did not want to apply strict scrutiny — as that might create the precedent for subsequent gun cases.
If the Court takes on Drake, we’ll have a better picture of what’s really going on.
I agree, this is very dubious legal argument that Heller would apply strict scrutiny.
But maybe if we say it often enough people will believe it. 🙁
If SCOTUS had applied “strict scrutiny” to the Second Amendment they would have simply cut the crap and embraced the intent of the Second Amendment – Constitutional Carry and full pre-emption of each and every piece of federal or State legislation restricting the RKBA.
Louisiana mandates strict scrutiny for gun laws. Have the courts there invalidated the permit requirement for carrying?
There are a few cases working right now for this very thing in LA I am following. One that was finished 2 months ago was a felon who was concealing and caught, who tried to use this as a defense. The court decided to work it as an individual situation, and twisted its wording to make sure it only applied to his case, but it was decided he was carrying illegally for a few different reasons.
Right now in the LA State legislation is bill HB494, which restructures the newest amendment (the one that added strict scrutiny) to add constitutional carry.
Interestingly, and I wanted to add to see if anyone else noticed this: The NRA has not touched the fact that this bill exist (not saying it should be supported, or not supported), but it is my opinion that the NRA seems to be opposed to constitutional carry because they were for fixes to our current ccw regs that help people carry in restaurants that serve alcohol.
The Founders would not understand your interpretation of 2A.
Most of the regulations you are against are State regulations — and when written, the Second Amendment had absolutely zero to do with the states. Nothing. It was a prohibition only against Federal action, and the states could do whatever the hell they wanted.
That’s your original 2A.
So, you’re advocating, what?
In any case, in my adult lifetime we’ve gone from fewer than a dozen states that were shall issue to more than 40.
I’m pretty sure the states are leading the charge in the right direction.
–Andrew, @LawSelfDefense
@Andrew, I’m advocating Constitutional Carry. But what I’m saying is that some of the people tub-thumping for 2A don’t have a clue as to what they’re talking about.
2A as written was never, ever, EVER intended to apply to the states. On the contrary, according to 10A, the power to regulate firearms was left to the states exclusively.
The Court in McDonald ruled that 2A was made binding on the states by 14A. So isn’t it 14A that we should be talking about?
Sure.
But the Founders also built into the Constitution a mechanism for amending it. And those latter Amendments both add to and change the Constitution.
If you believe in the Founder’s original intent, you also have to accept THEIR acceptance of change.
If the Founders had believed the Constitution was fixed as bedrock, they would not have bothered to build into it a mechanism of change.
Now, they made that mechanism a very difficult one. Certainly, having 5 Supreme Court Justices fabricate penumbras of “Constitutional rights” would have been beyond their imagining.
But actual Constitutional Amendments were well within their expectations and planning for the country.
–Andrew, @LawSelfDefense
My wife subjects my actions to Strict Scrutiny frequently, and trust, me, it’s no bed of roses.
That aside, it’s a big damned country and most of the states are broke or nearly so. Shall-issue carry for law-abiding citizens and reasonable standard-sized magazines to carry with, is at this point a financial survival issue, and I’m blindly counting on SCOTUS to draw a line which works. Putting the other motives of the 2A aside for a moment, there are large swaths of thousands of counties that cannot be well-policed at reasonable cost. This includes many urban zones. The RKBA is a necessity to assure a reasonable level of safety for the productive citizens who make this nation function. (And then, of course, there are the states that wobble in instability, nepotism, and bankruptcy (Illinois et al), which really could require, if briefly, citizen defense against tyranny.) I have high hopes for “gun rights protection we can believe in!”
That’s your original 2A.
I’ll take it! Fighting my state and not state + federal makes more sense. At least with the 2A operating under the intended scope, there is hope for people of like minds moving to states that mirror shall not be infringed (or for the People to make it so in certain states).
Okay, non-lawyer trying to process this. So, there are three levels of scrutiny, plus this brand spanking new pseudo-scrutiny. The author’s argument is Heller implies strict scrutiny applies. Your and Skyler’s argument is Heller merely ruled out the least of the scrutinies, plus Breyer’s nonsense, leaving it up in the air between strict and the middle one. Correct?
Give the man a cigar. Exactly correct.
@Gyufygy, you nailed it.
And man, am I glad that somebody is paying attention!
“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.”
We are at or past the point where that could be enforced unless they lose their minds completely.
We are at the Ignore anything they(progressives) say or do stage.
We are at the Ignore anything they(progressives) say or do stage.
They have SWAT teams that think otherwise. And if we’ve seen anything, it’s that cops have no problems with killing anyone.
How about the courts use the text of the 2nd amendment to determine constitutionality and nothing else?
Fine. The text of 2A as written restricts ONLY the Federal government. Is that what you want?
Recall tho that thru the 14th the 2nd also applies to States.
That’s another mistake I have made before–assuming that the 14th necessarily applies all the BOR to the States. Apparently there was some question about that after Heller vis a vis the Second, but IIRC another case indicated that such was the case. Maybe someone more up to speed can help me out here.
McDonald ruled that 2A was incorporated pursuant to the 14th Amendment — in 2010. So the “Original Intent” of the authors of 2A — which prohibited only Federal action — was never taken into account. Never. Couldn’t be.
So please, people, stop telling me what the Founders intended. They never intended 2A to apply to the states. Period.
Tell me what the drafters of the 14th Amendment wanted and we can have a dialog.
I don’t think I addressed intent just application. As you know the 14th was passed in the wake of the Civil War. It is just my opinion but I believe that the 14th was to make citizens out of the freed slaves and to apply at least 1-8 to the States; 9&10 are creatures into themselves. it’s been almost 40 years since I took Con Law. Practice limited to Farm and Ranch and Oil and Gas my entire professional life.
@James P Barnett Jr, you may or may not be correct. SCOTUS created the doctrine of “incorporation” in the first place — it does not exist in 14A — and then further crafted something called “selective incorporation.” Which means that the entire BOR maybe was not incorporated, or maybe it was, depending on what SCOTUS says is incorporated.
The trend is to incorporate everything, but if it was automatic, we wouldn’t have needed McDonald.
All the more reason to win the political battlefield and not be dependent upon a bunch of old folks in black robes, no? And, by the way, when we win the political battle we also get to appoint our OWN old folks in black robes.
–Andrew, @LawSelfDefense
You would think Connecticut, being the first state to ratify the Fourteenth amendment, would be very enthusiastic about incorporation of the Second Amendment!
Yeah, but CT did that in, what, 2002. Wait, no, 1982. No, wait, 1962?
I can assure you that the Concord, MA of 2014 is NOT the Concord, MA of 1775.
Fortunately, where Concord has fallen short, the rest of the nation has risen. Overwhelmingly so.
–Andrew, @LawSelfDefense
It was always my impression that the Federal Bill of Rights applied everywhere in the USA, and no state had the power to deny any citizen any right guaranteed by that document. It was, to my simple-minded thinking, an “a fortiori” situation – where the highest level of government lacks the power to restrict the rights of the people, the lower level of the state government cannot possibly assume such power. Then I learned that this was only true if such rights had been “incorporated”.
We can be grateful that McDONALD has secured this “incorporation” of the Second Amendment, and made the RKBA the right of every citizen in every state – in theory at present, in reality eventually.
Strangely, if the Third Amendment is not “incorporated” (and I doubt it is) it seems possible some governor of some state may order homeowners to “quarter soldiers” in their houses with no violation of the Third Amendment. Amazing.
Select our own judges.
This is really the fulcrum right here and now. All the nattering on, in these comments and gun-site forums is irrelevant if WE the POTG dont get out our wallets, and get on the phone, laptops, and walk the neighborhood in your district, to elect Senators this go-round, who will VETO Obamas picks, and VOTE FOR the next President.
Its that simple.
One more nitwit on the Supremes and 40 years of legal effort is again on hold.
Thats why the left is so quiet on the fight on whats happening in the DC court, and why its so brutal. Remember Dirty Harry changing the rules? Goes both ways, gents.
Because of Heller, my home state of Louisiana uses Strict Scrutiny to decide any 2nd Amendment laws. The tide is turning.
Because of Heller or because of the state constitutional amendment y’all passed there?
Truly, this has been a war won on political, not Constitutional, ground. The vast shift of states from no/may issue to shall/must issue occurred well before either Heller or McDonald. The Supreme Court rulings simply reduce the risk that the Federal government will step in and squash the states.
If we’re counting on a handful of political appointees to secure our fundamental liberties, we’ve already lost.
Fortunately, we’re not counting on that. We’ve largely elected representatives, especially at the state level but also increasingly at the Federal level, who reflect our interests. The failure of the Federal government to pass even a mockery of gun control legislation in the aftermath of Sandy Hook shows the degree to which gun control is political poison today. Heck, even the gun control groups now don’t dare utter the words “gun control”. Now it’s all about “reducing gun violence.” (To which I respond, what’s wrong with “gun violence”? If it’s women shooting their rapists, I’m 100% in favor of MORE “gun violence.”)
Look at Stand-Your-Ground. Even in today’s highly toxic media environment towards SYG, it continues to grow, gaining votes by 3-1 margins, and efforts to repeal it losing by 3-1 margins.
I love the smell of victory in the morning! 🙂
–Andrew, @LawSelfDefense
I can’t quote that last line perfectly either, but I think it is more like this: “I love the smell of napalm in the morning. It smells like…victory.”
Mike, you are still missing the mark, and comments by Ralph, Ropingdown and Another Robert explain why. Let me try my own clarification, and perhaps you will understand. As you recognize, there are three standards of review, rational basis, intermediate and finally strict scrutiny. Of the three, the EASIEST for the government to prove is rational basis. A legislative declaration that a law is “in the public interest”, without more, is usually enough to sustain a law against a constitutional attack. Strict scrutiny is the HARDEST for the government to meet, and the easiest for plaintiffs challenging a law. The fact of the matter was that the D.C. law did not even pass rational basis review–the least restrictive test. So we can say that total bans on the exercise of second amendment rights do not even pass rational basis review–and are off the table completely. Thus, the court applied the lowest form of scrutiny and found the law unconstitutional.
Where your confusion perhaps arises is that the court, for the edification of future courts, concluded that some heightened scrutiny above rational basis was required–but very intentionally did not specify what that level should be, expressly or inferentially.
Every appellate court since Heller has applied intermediate scrutiny–or at least says it did. Some have tried to say that it is not a set standard but instead a ‘sliding scale”–which is the very essence of Justice Breyer’s interest balancing approach tat the majority rejected. Others–and I am thinking of New jersey in its Drake decision–applied a rational basis review but simply labeled what they were doing as “intermediate scrutiny.” There, there were no legislative findings at the time the law was passed, and New Jersey submitted no evidence at all to support a factual finding that the law met the intermediate scrutiny burden. This is most certainly NOT intermediate scrutiny. Instead, it is a court making a political decision that a state has a greater public interest in “safety” s to obliterate the second amendment right simply on the basis of a legislative enactment. The Peruta decision also applied intermediate scrutiny–but much more “strictly” than the appellate courts on the east coast; but then, it was faced with a virtual ban of carrying of firearms in public, making its task that much “easier.”
I understood the DC statute to prohibit hand guns. Consequently, for the Court to sustain the DC statute, DC would have to have established a compelling reason to so severely limit a Constitutional provision. DC had a heavy burden to carry and was unable to persuade the Court of its compelling reason(s). Therefore in striking down the DC statute the strict scrutiny standard was apparently the standard of review though not so articulated. Although the DC standard failed all three standards of review, it necessarily failed the strict review which was the “hardest” for DC to establish. Having decided that DC failed to carry its high burden the statute was struck down.
@Mark N., nicely done my brother.
The dissenter in Peruta seems to be of opinion that combining intermediate scrutiny with the idea that the core of the 2nd amendment right is home defense is enough to justify a may issue system for carrying outside one’s home. It is hard for a non-lawyer to read that kind of reasoning and not feel that some judges will simply say anything to get the outcome they want.
“It is hard for a non-lawyer to read that kind of reasoning and not feel that some judges will simply say anything to get the outcome they want.”
In the halls of justice, the only justice is in the halls.
The fiction that judges are somehow removed from personal prejudice, political pressure, and other common drivers of public behavior is ridiculous on its face.
Want “good” judges? Elect good politicians who appoint and approve them.
Period.
By the way, can someone show me in the Constitution where the Supreme Court gets its independent authority? Because I’ve been looking for 30 years, having some trouble finding it.
–Andrew, @LawSelfDefense
Article reminds me of this video
I wish the majority of people would watch that video and for those who are bored easily, at least the first 60 seconds
I normally don’t watch most of these embedded videos. However, I took your suggestion and intently watched the first 60 seconds… was hooked and had to watch to the end. 🙂
@Pete from Texas: Great video. Thanks for posting it!
On a lighter note. does the header pic bother anyone else? A supressor on a revolver…really? Unless thats a version of the Nagant revolver with a gas seal system that I’ve never seen it’s a bad joke.
Yup. I was wondering when someone would notice.
It bothered me, too.
On a lighter note. does the header pic bother anyone else? A suppressor on a revolver…really? Unless that’s a version of the Nagant revolver with a gas seal system that I’ve never seen before, it’s coming off as an epic fail.
Another thing that I find weird is the ability of the government to regulate the import of arms. It is like regulating the import of paper or ink (can they do that?). Why this is not challenged in courts I have no clue. If the state can use the clause of commerce to restrict a right, then the rights have no meaning. The same is true for the “balancing” of state interest vs the rights of the the people.
The Feds can use the Commerce Clause up to the point where it violates the law. There are plenty of arms available, so I don’t think that a court will invalidate most import restrictions based on 2A.
If you gotta have an AK and they’re barred for importation, I’m sure that a lot of American companies will be thrilled to sell you one. Or twenty.
If the court says that they would reach the same conclusion under any of the three available standards, you can only assume, if indeed you can assume at all, that until otherwise indicated, the lowest standard applied, not the highest. And to reject an outlying, heretofore unannounced, fourth standard says nothing about the applicability of the other three. Constitutional law has never been my specialty, and I have been caught in errors of specific constitutional doctrines before. For example, I would have guessed that since the issue in Heller involved a specifically enumerated portion of the Bill of Rights, strict scrutiny would naturally apply; obviously, such is not the case. But what I said just now is based on general legal principles applicable to interpreting court cases, and on logic. I fear Dan has again missed the mark in his interpretation of a court case.
Like stereo instructions… I begin reading it because I recognize that I should learn the information and care about it.
But, shortly after starting I lose interest because, well, it’s stereo instruction.
It’s columns like this, followed by the comments, where I truly learn.
Good stuff.
Reading this flight of fancy takes me back to my younger and more vulnerable years, when I knew everything about law and nothing about litigation. After thirteen years, the quantifiers have very nearly exchanged place. The first lesson of litigation is that nobody knows anything, except for the judges. A good way to prove this proposition is by reading the Ninth Circuit’s Peruta opinion with special attention to the discussion of their sister circuits, then following up by reading the latter. If there is one thing Judges Wesley, Aldisert, King, and O’Scannlain know how to do, it is writing opinions logically consistent with precedent. Happily, logical consistency is an insufficient warrant for truth or correctness, and that is where my latest hero, Judge Diarmuid Fionntain O’Scannlain, scores a resounding win. But his thoroughly justified split from his colleagues, as well as his own avoidance of pronouncements on the proper level of judicial scrutiny, suffices to prove that everything beyond rational basis remains on the table for the progeny of Heller and McDonald.
Shorter: “Everything beyond rational basis remains on the table for the progeny of Heller and McDonald.”
–Andrew, @LawSelfDefense
Mike, your logic in this statement seems backwards to me.
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.
Saying that it could not stand under standard of scrutiny means it would not even pass the most lenient review standard of rational basis. Since it won’t stand under any standard means we can not make any assumptions about which standard was applied.
While the majority opinion does, as you point out, say that the core protections of an enumerated right are important, they only rule out the interest balancing approach. They never specifically say which of the other three real standards (rational, intermediate or strict) should apply in all cases. Your statement in your original article that I disagreed with was:
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.
Saying that interest balancing doesn’t cut it and that the core protections of any enumerated right have never been subjected to interest balancing does not dictate that strict scrutiny must be used in all Second Amendment cases.
I appreciate your attempt to clarify your reasoning but I remain unconvinced by your arguments and think you are reading more into the decision than was actually stated.
I actually agree with Scalia about “levels of scrutinies” He said in an interview, “I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny, blah blah blah blah. That’s just a thumb on the scales.”
Indeed, too much is made out of such tiers. In the last 20-30 years SCOTUS has bucked them numerous times. Either giving even rational basis teeth (Romer v. Colorado) or not setting a standard at all.
Moore and Peruta, e.g. following Heller seem to eschew a tiered approach at all. Maybe because, in their judgment, the laws in questions destroyed and not merely limited a right. Still, I agree with Scalia. It acts as a thumb on the scales, justifying the outcome desired whenever possible
Hi Mike,
I think that, when the court says that the DC handgun ban fails all levels of scrutiny, they’re merely saying that had they applied strict scrutiny, the ban would have failed. As a matter of precedent, that statement doesn’t imply that the court chose any particular level of scrutiny.
But for those saying that the original intent of the Second Amendment was to reserve for the States the power to regulate the right to keep and bear arms: hey, I’m not a lawyer; I’m just an engineer; but by my reading of the Second Amendment in the context of the entire Bill of Rights, you’re wrong. There is a meaningful and intended difference between the phrasing of “Congress shall make no law” in the First Amendment and “shall not be infringed” in the Second Amendment. In the context of the Tenth Amendment, that difference is significant. Under the Tenth Amendment, powers not enumerated are left to the States, or to the people.
The unambiguous phrase shall not be infringed clearly intends for the exercise of the right to keep and bear arms to be left to the people: not to the Federal government, and not to the States, but to the people.
Given that the principle underlying the Second Amendment is the natural right of free people to act in their own self-defense and to act as a bulwark against a tyrannical government, it makes no logical sense that the Founders would have considered the Federal government potentially tyrannical, while not likewise considering the governments of the several, sovereign States to be just as potentially tyrannical.
The right to keep and bear arms is a natural right of the people, regulated by the people. Any infringement of that right, by any level of government, is a step toward tyranny and an erosion in the ability of the people to act in their own self-defense. The Founders knew and understood this principle, and as a result declared that the right to keep and bear arms shall not be infringed.
This whole “scrutiny” BS is nothing more than an attempt to justify the courts reason for existing and to keep the sheeple under the thumb of government.
Well said Chip.
As for the whole hating lawyers vs politicians argument up thread, a majority of politicians are lawyers these days. Lawyers who get all bent out of shape over the stereotypes of their profession ought to clean house first.
Ok, I agree, but remember, lawyers who aspire to higher office aren’t working for We The People. They are working for their win/lose stats as Prosecutors, and finding money for their election campaigns, and making deals with the various corruptocrats within Fed.gov, and the campaign bundlers.
Like AG Kamala Harris.
So, its up to We The People to become educated, and take action, starting locally- the Tea Party is the best example. If you wont work to make your vote count, including funding lobbies that leverage your power, its all mental mastur….
(comment self-moderated- you get the point).
Money talks and you know what walks.
You are somewhat correct. The bill of rights, second, third, and fourth inclusive, was drafted in response to England’s excesses which ultimately gave rise to the American Revolution. In general, the thought at the time was that the large Federal/national Government was an agent of evil while state government was an agent of the people. As Ralph has said several times, the second amendment was meant to prohibit the federal government from removing individual citizens’ capacity to take up arms in their defense, to wit a militia.
It wasn’t till the civil war that it was determined that the bill of rights needed to be specifically incorporated to the states via the 14th amendment—thereby freeing slaves among other things.
What is being argued now is both how strictly to review cases where the second amendment applies and what the intent of the framers of the constitution was then vs. now. The very fact that the decision in Heller was 5-4, like most recent decisions of note, says to me that there is a deep divide on this subject. We have gained ground it’s true. But we have gained that ground by the slimmest of margins.