Home Forums Hunting & Shooting Hunter's Campfire 2A level of scrutiny SCOTUS case coming

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.

After foisting ObamaCare upon us, I have no doubt that SCOTUS will act in their best interest, instead of ours.

Which is why the next election is so very critical.

Thanks for that. That helps us non legal people understand a little better. This case just goes to show how important it is not to let hillary or bernie get to appoint anyone to the SCOTUS. Add a couple of picks by any of those two to the court and I am quite sure the ban would have been upheld.

The next POTUS will replace at least Ginsburg and Kennedy; that's the swing vote on the 2A (Kennedy) and a hard-core leftist. The next POTUS will determine whether the SCOTUS is a 5-vote majority block leftist, or whether the Constitution and freedom still have a chance at all. Within the next 8 years, expect Breyer, Scalia, Roberts, and potentially Thomas and Alito to also be replaced. In eight years, the SCOTUS could relegate Kagan and Sotomayor to a two-vote minority and irrelevance, or elevate them to the face/voice of the SCOTUS for the next 40 years. In November, we make this decision and it is the one that overrides everything else.

All that said, since I've had a level of scrutiny conversation with several folks from here recently, and since it was alluded to on the MD 2A thread yesterday, I thought I'd put up what all that meant so maybe some have a better idea of what all the legalese means.

Your clarification is most appreciated. And the quote should serve as a chilling wake up call for anyone with any vestige of hope and love for freedom.

if we don't don't this election we're all screwed. better keep your guns loaded.

No question..

But even a so-called 'conservative' justice installed can quickly be found to be a RINO in sheep's clothing --- ala J. RINO Roberts..

And buy a few more if yer short.. Oh, and don't forget caches of ammo..

People need to quit holding their breath for the SC to re-instate their rights.

What happens when the SC (which is simply a portion of one branch of government) runs rouge?

Government ain't gonna save you.

What are your options then?

Time to wake up.

It's not a reinstatement that is being discussed, but the pending analysis of governmental restrictions on a fundamental right.

Just wait till HRC nominates Obama to the SC after his term is up. Don't think elections matter?

It's been said over and over again this election is about SCOTUS the most important election of our life time im my estimation

The 2A is just one SCOTUS member vote away from being expunged. The next president could appoint up to 4 new members.
As Obongo has said, elections matter.

Thanks, 4ager. When it hits the Supreme Court, we KNOW there are 4 justices that will fight the case no matter what since they still insist in their dissents that the 2A is not an individual right.

We're also almost positive there are 4 judges that will rule on strict scrutiny for any Constitutional right.

Since Kennedy joined with the originalists on Heller and McDonald, I can't see him doing anything but going along with strict scrutiny whether he agrees with an assault weapon and magazine ban or not.

So I personally think we're in good shape if Gura takes the case to the SC.

So.. probably a couple years out now for the case to go back down to district court, then back up to the Appeals, and then to the Supreme Court? Or is one of the other cases likely to get there first?

The 4th Circuit case SHOULD go faster than that. It SHOULD go back to the trial court for re-hearing and that goes quickly, and then back to the Appeals Court, then to the SCOTUS.

HOWEVER, the MD AG just said that he will appeal the ruling of the Appeals Court, including trying to take it to the SCOTUS - so that could either speed up or slow down the entire process (depending upon how the appeal is filed and whether the SCOTUS hears it and under what question(s)).

With the 10th Circuit case also pending right now, I think we're probably looking at the 2017 term at the earliest for the SCOTUS to get one of these cases, maybe 2018.

WORD. We should tattoo this on the foreheads of all the kooks here....

Justices Thomas and Scalia dissented in the courts refusal to hear a case out of Chicago challenging assault weapons bans last year and I found their dissent interesting -

Thomas wrote, “Roughly five million Americans own AR-15 style semiautomatic rifles.” And he explained that the “overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. Under our precedents that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.”

When Thomas says that SCOTUS’s precedents demonstrate that the commonality of the AR-15 is evidence of its protections under the Second Amendment, he is alluding to the court’s decision in District of Columbia v Heller (2008). There the court explained that the test of commonality is one of the chief means of ascertaining which weapons are protected for the people’s possession.

According to Heller, “the sorts of weapons protected” by the Second Amendment when it was written were those “in common use at the time.” And this has been true throughout the 224 years that have passed since the Second Amendment’s ratification. It means the guns “in common use” among the citizenry are the guns protected by the Bill of Rights. And with five million AR-15 owners in America today, those rifles are certainly “in common use” among the citizenry, and therefore protected.

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Who where wouldn't agree that the AR-15 and high capacity magazines aren't as common as flees on a dogs back? The AR-15 has become America's rifle, banning it violates the constitution.

Thanks. Brought known to a level even i can understand.

Thanks 4, you made it easy to understand.

They're not supposed to act in any way. They are to follow the Constitution.

This really makes me smile. If we get strict scrutiny, it's a huge win. I can see a great many odious gun laws going away if that is established.

I wonder if enough laws could be struck down so that open carry becomes legal in all states?

With all other basic rights I can think of, we do not require advance permission but rather punish mis-use after the fact. You don't need a license to buy a press and print newspapers, or to practice a particular religion, for example. Oh... wait.... you do have to have a license to operate a broadcast station, but not to speak your mind once you have it.