Politics & Policy

Strict Scrutiny for Firearms Restrictions?

AR-15 style rifle on display at a gun store in Tinley Park, Ill. (Scott Olson/Getty)
An appeals-court panel rules that gun-control laws must pass an exceedingly high threshold to be constitutional.

For the first time, a federal appeals court has held that a state’s ban on “assault” long guns and “high-capacity” magazines must be held to the highest level of judicial scrutiny. In a 2–1 decision, the Circuit Court of Appeals for the Fourth Circuit (which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia) held that Maryland’s Firearm Safety Act must be evaluated under the same stringent standard that courts routinely use to strike down race-based governmental discrimination and categorical bans on speech, since, like them, the law seeks to restrict a core constitutional freedom. The appeals court sent the law back to the district court to give Maryland a chance to muster evidence in defense of barring law-abiding citizens from possessing long guns.

The Firearm Safety Act was hastily passed after the 2012 school shooting in Newtown, Conn., and, among other things, it criminalized the possession of a list of guns it deemed to be assault weapons, including the popular AR-15 rifle. In 2014 a district-court judge upheld that law against an initial challenge, ruling that it passed “intermediate scrutiny” and concluding that there was a “reasonable fit” between the law’s gun and magazine bans and the state’s goal of promoting public safety. Now, however, the appeals court has ruled that a higher level of scrutiny was required.

To the uninitiated, this may all seem like a meaningless exercise in linguistic hair-splitting. And yet the level of scrutiny that courts apply to a given law determines something important – namely, the degree to which the government is permitted to regulate the realm in which that law is binding. “Strict scrutiny,” which is reserved for laws or regulations that infringe upon core rights, puts the burden on the government to show that its restrictions on constitutionally protected conduct are narrowly tailored to achieve a compelling governmental interest. By subjecting Maryland’s assault-weapons ban to this heavy burden, the appeals court is casting doubt on categorical bans on semiautomatic-long-gun possession that exist in several other states and localities. The old quip “strict in theory, fatal in fact” is not always true, but it is more often than not.

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The appeals court handily dispatched the standard claim of gun-control activists that people rarely own a “dangerous and unusual” semiautomatic long gun for lawful purposes. The court found that not only are such firearms owned for self-defense in one’s home, but that hunting, recreational shooting, and competitive marksmanship events are also constitutionally protected. It is rare for an appeals court to go outside the self-defense context to find that firearm possession lies at the core of the Second Amendment’s protection. Gun-rights activists have been hoping that courts will explicitly recognize that the Constitution protects not only the right to keep a firearm, but also the distinct right to bear one. This court has now done so.

#share#The appeals court also discarded Maryland’s argument that it should at the very least be able to ban high-capacity magazines — that is, magazines that hold more than ten rounds. Noting that such magazines are so common that they are standard for firearms, the court concluded that attempts to ban magazines or ammunition are no more than bald attempts to circumvent the Second Amendment. What good is a right to keep and bear a function-less or function-lite firearm?

Never before today has a federal appeals court held that an assault-weapons ban must pass strict scrutiny.

By contrast, the dissenting judge repeatedly invoked the language of gun-control activists, calling Maryland’s categorical gun ban a “sensible gun-control measure” and suggesting that the court’s decision would lead to “the next Newtown — or Virginia Tech, or Binghamton, or Fort Hood, or Tucson, or Aurora, or Oak Creek, or San Bernardino.” This is not so much appellate reasoning as an appeal to feelings. It deserves no further mention.

Never before today has a federal appeals court held that an assault-weapons ban must pass strict scrutiny. Unfortunately, it is too early to say that Maryland’s gun ban has been declared unconstitutional. Before that happens, Maryland will have an opportunity to show the district court that the ban passes strict scrutiny. But it is not too early to say that Maryland needlessly drove away 300 manufacturing jobs when it passed its probably unconstitutional gun law.

#related#Maryland, for obvious reasons, is not eager to take up the challenge of showing that a categorical gun ban is narrowly tailored to prevent crime but not such lawful gun use as self-defense, hunting, and target shooting. The state has already announced that it will seek further review of this decision, either by asking the Fourth Circuit to rehear the case en banc (i.e., before the full complement of judges instead of a three-member panel) or by petitioning the Supreme Court to resolve the issue. Last year the Supreme Court declined to take up a Seventh Circuit case that had let stand Chicago’s ban on semiautomatic long guns and high-capacity magazines, but a circuit split of this sort is one of the things that is likely to lead to the high court’s accepting a case. Gun-rights activists have good reason to be excited about this decision.

— Gabriel Malor is an attorney and writer in Washington, D.C. Follow him on Twitter at @gabrielmalor

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