Currently, the 2nd and 7th Circuits have applied the "rational basis" or "reasonableness" standard to infringements on the Second Amendment. The SCOTUS refused to hear the appeal of the Highland Park case out of the 7th (Chitcago) last session because the case wasn't "ripe". What the Hell does that mean? It means that there was no "Circuit split", or another Federal Appeals Court circuit that had applied a different level of scrutiny.
Yesterday, the 4th Circuit Court of Appeals kicked the case against MD's magazine ban and other restrictions back down to the trial court to have the verdict re-evaluated under "strict scrutiny". There is a case pending in the 10th Circuit (CO) on their ban as well. The 4th is already telegraphing that they will rule on the appeal under "strict scrutiny" and there is a good chance that the 10th will as well. That will then give a "Circuit split" and make the case(s) "ripe" for review by the SCOTUS.
So, what the Hell difference are there in the levels of scrutiny? Here goes -
The lowest level of scrutiny is the "rational basis" or "reasonableness" standard. The reviewing court looks at the case to determine whether the government had any "rationally related basis" for the law on a "legitimate governmental interest". This is a very easy bar for the government to meet, and the burden is on the plaintiff/challenger to show that the government has no legitimate interest in the issue at all, and/or that the law is not in any way rationally or reasonably related to that interest. Only the most egregious overreaches of governmental authority are struck down under this test; the laws will almost always be upheld unless they are completely arbitrary and illogical in application. This level of scrutiny is NOT used in determining restrictions on fundamental, Constitutionally guaranteed and protected rights. It is generally reserved for procedural issues and those unenumerated rights deemed not fundamental by the SCOTUS.
The next level of scrutiny is "intermediate scrutiny". This is where the burden shifts to the government to prove that the law should stand, and that the law is "substantially related" to "an important governmental interest". The government must prove that the "important governmental interest" is one that the falls under essentially the concept of the Social Contract theory and is a recognized, accepted and largely explicitly delegated authority under the Federal or state Constitution in question, and does NOT unduly punish or burden an unpopular or suspect class of the people. Furthermore, the government must show that law has an "exceedingly persuasive justification" (such as zoning certain types of businesses into or out of certain areas of a community, but not forbidding them completely, due to health or protection of children rationales). This level is generally applied to Equal Protection cases and sex/gender discrimination (and Affirmative Action) issues and under those issues it has been applied to the states under the 14th Amendment. It is important to note that the District and Appellate courts have applied intermediate scrutiny to gun bans in Illinois and DC and found that those bans failed such evaluation. While this has not set the bar for review of 2A laws under intermediate scrutiny, it has shown that firearms bans do fail this level. This level of scrutiny has NOT otherwise been used for enumerated and protected rights under the Bill of Rights.
The final, and highest, level of scrutiny is "strict scrutiny". This is the level of scrutiny that has previously been used to analyze laws that impact explicit, enumerated, fundamental rights protected under the Bill of Rights. Under this analysis, the government must prove three things: that the government has a "compelling governmental interest"; that the law in question is "narrowly tailored" to address that interest and achieve the explicitly aligned goal; and, that the law is "the least restrictive means" of accomplishing that goal. The "compelling governmental interest" test is exactly the same as the "rational basis" or "reasonableness" test, except that the burden is on the government to prove that it is instead of on the challenger to prove that it is not. This means that the government must show that the interest is "necessary" or "crucial" and not simply preferred (which is all they must do when the burden is reversed under the "rational basis" or "reasonableness" test). Being "narrowly tailored" and explicitly aligned forces the government to not only explain how the law directly impacts the interest in question, but how it does NOT create undue collateral impacts; i.e., that the law is written specifically to achieve ONLY the compelling governmental interest goals. If the law is overbroad, or insufficient, then it will fail the narrow tailoring test. Finally, the government must prove that the law in question is the least restrictive means to achieve that goal. If there is any means of accomplishing the stated compelling interest goal that is less restrictive to the fundamental right in question, then the government's argument fails.
The Bill of Rights explicitly enumerates the Right to Keep and Bear Arms, and the SCOTUS FINALLY recognized that right as "fundamental" under Heller and McDonald. If the SCOTUS applies any other level of scrutiny to 2A cases other than strict scrutiny, then the 2A will be the ONLY enumerated, fundamental right to receive a lesser degree of protection.
Last edited by 4ager; 02/04/16.
