- Created: Wednesday, 05 October 2011
- Written by Larry Pratt
-- Gun Owners of
to help take this case to the Supreme Court America
On Tuesday, the U.S. Court of Appeals for the District of Columbia Circuit issued its opinion in Heller v. District of Columbia -- known as “Heller II.” This case is a challenge to the onerous registration requirements, and ban on so-called assault weapons and high capacity magazines, which DC adopted after the District Government lost the Heller I case in the Supreme Court.
Unfortunately, plaintiff Heller asked the Court to use “strict scrutiny” to strike down the D.C. regulations. The
Predictably, the Court of Appeals rejected Heller’s proposal and refused to use “strict scrutiny” -- instead using a lower barrier which would permit the DC government to restrict people’s Second Amendment rights, so long as they were “reasonably related” to an “important governmental interest.”
The courts have fabricated different levels of review which serve as balancing tests. A “strict scrutiny” test tips the scales more heavily against the government, making it harder to justify laws that would infringe upon people’s liberties. Lower levels of balancing -- known as “intermediate scrutiny” or “rational basis” -- unduly give the government more leeway in restricting people’s liberties.
Of course, which standard a judge uses all depends on the outcome they’d like to achieve in the end. It’s the ultimate in circular reasoning.
The reality is that the Second Amendment provides us with its own level of scrutiny. As stated in
Nevertheless, the Court decided 2-1 to uphold the District’s restrictions on firearms ownership. It also remanded the case to the district court to gather further evidence on whether D.C.’s registration regulations are reasonable.
There is some good news, however, and it was found in Judge Kavanaugh’s dissenting opinion. Although no explicit credit is given, Judge Kavanaugh’s dissent largely uses the same approach put forth by
But Judge Kavanaugh was able to think outside the box of plaintiff Heller and defendant District of
In his opinion, Judge Kavanaugh wrote that “in my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” (Emphasis added.)
Criticizing the majority opinion as reverting back to the “familiar” standards of scrutiny, Judge Kavanaugh even cited some of the same authorities that
Judge Kavanaugh even set the record straight about the gun-grabbers’ label of AR-15's as assault weapons, calling it “rhetorical,” and pointing out that “if a gun is effective for ‘offense,’ it might ... also be effective for ‘defense.’”
Judge Kavanaugh’s opinion is the first we have seen since the Supreme Court’s decisions in Heller and McDonald that unambiguously reject any and all of the “interest balancing tests” in deciding Second Amendment challenges.
Should the Judge Kavanaugh position be reinforced by the Supreme Court, it will mean great strides towards returning the Second Amendment to the original meaning it had when adopted, where “some types of ‘arms’ are protected absolutely,” and where mere judges are not given the power to decide “whether the right is really worth insisting on.”