Virtually all gun control laws will be found unconstitutional if subject to strict scrutiny
In 2013, Maryland enacted its Firearms Safety Act (FSA). With its passage, effectively banning its residents from owning any of the large majority of semi-automatic rifles owned by American citizens (exceptions were made for retired law enforcement officers). The FSA also imposed other restrictions, such as banning certain standard-capacity magazines.
Such laws are common in blue states, of course, and when challenged in the Federal courts on the grounds that they violate the Second Amendment they are typically subject only to intermediate (or lesser) scrutiny. Generally speaking, if the State can articulate virtually any purportedly reasonable basis for the gun law, it survives scrutiny. Merely uttering the words “public safety” is usually sufficient for this purpose.
Of course, normally laws that arguably infringe an enumerated Constitutional rights are not subject to mere intermediate scrutiny, but rather they are subject to strict scrutiny. To survive strict scrutiny the law must advance not merely any governmental interest, but in particular a compelling governmental interest. It is perhaps arguable that “public safety” would serve to meet this requirement. In addition, however, the law must also be narrowly tailored to actually achieve that interest. It is this second requirement that almost invariably leads to the law in question being found to be unconstitutional.
In a nutshell, then, if intermediate scrutiny is applied to almost any law, the law survives. If strict scrutiny is applied to almost any law, the law falls.
To nobody’s surprise, that’s precisely what happened with the FSA was challenged in Federal court in Kolbe v. Hogan, in which the plaintiff gun owners never even got to argue on the merits. There the federal court granted summary judgment to the state, concluding that under intermediate scrutiny the FSA was not an unconstitutional infringement of the Second Amendment. See Kolbe v. O’Malley, 42 F. Supp. 3d 768 (D. Md. 2014).
It is a true oddity of constitutional law that the rights enumerated in the Constitution are almost invariably privileged to strict scrutiny–except for the rights enumerated in the Second Amendment.
This state of affairs has allowed the implementing of constraints on the Second Amendment right to keep and bear arms that would never have been tolerated in the context of First Amendment rights to freedom of religion, speech, or assembly, or Fourth Amendment rights against governmental search and seizure, Fifth Amendment rights to due process and against self-incrimination and double jeopardy, and so forth.
Indeed, Second Amendment advocates have long noted this disparity of treatment, and have long fought to eradicate it. We know full well that should strict scrutiny be applied to the Second Amendment, the vast majority of gun laws currently on the books would inescapably be found to be unconstitutional infringements of the Second Amendment, and discarded.
In short, the application of strict scrutiny to the Second Amendment, just as it is applied to the other rights enumerated in the Constitution, would be a complete game changer on gun rights on a national scale.
Today, the United States Court of Appeals for 4th Circuit did exactly that, applying strict scrutiny to Maryland’s “Firearms Safety Act,” in a two-to-one decision that could change the face of gun laws for Maryland (arguably one of the most anti-gun states in the nation), and perhaps portend similar relief for the beleaguered residents of New York, New Jersey, California, and the few other remaining anti-gun states. This decision is embedded at the bottom of this post.
In brief, the court’s 2-to-1 majority concluded first that the guns and magazines banned by the FSA fall within the scope of the Second Amendment, and second that:
Strict scrutiny, then, is the appropriate level of scrutiny to apply to the ban of semi- automatic rifles and magazines holding more than 10 rounds.
That’s all I have time for in this post, but I encourage all of you to read the 4th Circuit’s opinion in its entirety:
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