Footnote 27 and Strict Scrutiny
Uncle links to some Gun Law News analysis of Heller’s footnote 27, which concludes “Any law, to pass a constitutional challenge on Second Amendment grounds, must pass a strict scrutiny test.”
There’s no way in hell 2nd Amendment regulations will have to survive strict scrutiny. Sure, gunners will argue for strict scrutiny, but they’ll never find 5 votes for it.
The Gun Law News blogger makes a good effort, but there are a few things he might have missed:
Strict scrutiny is the highest level of review and it is almost impossible to pass. It is only applied when courts want to use a test that will be failed. And it is almost never applied outside of 14th Amendment cases involving racial classification.
Ever since strict scrutiny was invented, the S.Ct. has been backing away from it, which is why sex/gender discrimination under the 14th Amendment is covered by intermediate scrutiny. Intermediate scrutiny is the test used for discrimination cases that aren’t about race. It’s a high standard, and anything that smells bad fails this test. It was invented so that judges could either (a) reach for a test the case will fail or (b) make it look like the regulation passed a high bar of analysis.
Below intermediate and strict scrutiny is the lowly rational basis review. This is the test judges apply when they want a law to be upheld. Virtually no law fails this test.
Outside of the discrimination context, laws don’t really bump up against this scale. Rational basis appears a lot in cases, but the higher levels of scrutiny aren’t applied. Instead, various balancing tests are used. In the first amendment context, for example, courts weigh the appropriateness of time, place and manner restrictions, look for narrow tailoring, etc.
The crux of Gun Law News’s argument is that Heller says the courts are going to apply the substantive due process tests from discrimination cases to 2nd Amendment laws. To get there, the blog reads the court’s reference to “any of the standards of scrutiny the Court has applied to enumerated constitutional rights” as including strict scrutiny. But I’m not aware of any S.Ct. application of strict scrutiny to any enumerated rights.
And while it’s true that footnote 27 says 2nd Amendment laws must pass a test higher than rational review, that test will likely be some sort of balancing or line-drawing test, just like with all the other enumerated rights.
What all of this adds up to is that the S.Ct. hasn’t ruled that strict scrutiny applies. And because strict scrutiny has at times been unwieldy in the race cases, I can’t imagine 5 votes for it. Strict scrutiny for 2nd Amendment cases would mean that almost no regulation of guns is permissible, and I just don’t see the court going that far.
Disclaimers: I’m not a constitutional law scholar or practitioner. My clients deal with these issues sometimes, but I wouldn’t call myself an expert. I haven’t read Heller all the way through yet. It’s on my list for this weekend. All of the above is just, like, my opinion, man.
July 3rd, 2008 at 11:52 am
Well I certainly hope the “rational-basis / reasonableness” test doesn’t end up being the standard in future 2A cases. I can’t think of any cases I’ve read where the court invalidated a law using such a test.
July 3rd, 2008 at 12:00 pm
Thanks for making that obvious.
Ah, no. Lawyers tend to call it such, but it’s neither the highest level or review nor unlikely to be bypassed — it doesn’t match up with the scrutiny set for prior restraints on free speech, often called “superstrict scrutiny”, nor instantly fatal. Thirty percent of laws facing strict scrutiny challenges get through the courts in one piece, and a majority of religious burden tests survive.
It’s invoked in every case involving fundamental rights or suspect classifications — that includes cases with no actual racial classification, only racial effects (Yick Wo v. Hopkins) or effects based on nationality, cases involving the content but not the time or place or manner of free speech (over 200 cases, including such as Street v. New York), and other fundamental rights such as religious freedom, freedom of association, et all.
Since the case Mississippi University for Women v. Hogan, gender discrimination has been treated on a level closer to strict scrutiny than intermediate scrutiny. The courts have not been backing away from strict.
Er, no, they don’t. Time, place, and manner restrictions are held under intermediate scrutiny, meaning that they are only acceptable “if important governmental interests… are furthered by substantially related means”. It doesn’t matter what the degree of the time, place, and manner restrictions are, or the important governmental interest is, only that the connection exists. The burden can be massive and the benefit minimal. It’s not a balancing test, and only strict scrutiny requires that the law focus on being narrowly tailored.
The only enumerated right that’s limited by a balancing test is that of due process (and arguably copyright, depending on whether you find that enumerated). Free speech restrictions not based on time, place, or manner restrictions face strict scrutiny, and have for most of the last century. Freedom of association and freedom of and from religion tests face strict scrutiny.
July 3rd, 2008 at 12:06 pm
And loose tag. Crud.
“City of Cleburne v. Cleburne Living Center, Inc.”, and an impressive case in New Jersey, for example. It’s very hard to fail rational basis, but it’s not impossible.
July 3rd, 2008 at 2:36 pm
First guys, let’s play nice..
Second, my jump to strict scrutiny came from the “Amongst other considerations, strict scrutiny applies to reviews of laws impacting fundamental rights” line combined with the footnote referencing RKBA with other enumerated rights. I equated enumerated with fundamental.
So, at least we can say that Second Amendment issues will not be evaluated under rational basis review.
Does the footnote push us into strict scrutiny or does intermediate scrutiny have an opening?
And no, I obviously am not a lawyer.
July 3rd, 2008 at 11:43 pm
Not all enumerated rights are fundamental, and not all fundamental rights are enumerated — the right to trial by jury is not fundamental, while the right to interstate travel is fundamental. No, it doesn’t make sense, nor does it follow the dictionary definition. SCOTUS wouldn’t do it if it were logical.
That said, it does seem like a fundamental right by the Carolene Products definition : it’s listed within the first ten amendments, exists outside of the presence of the federal government, and is not an internal aspect of the court. It should be a matter of strict scrutiny, if it uses the same methods as the protections recognized by the First Amendment.
That said, I’d be surprised if the court finds such. If Kennedy was willing to sign to strict scrutiny, I can’t see Scalia avoiding the subject. Chances are better they’ll just keep fishing the subject around.