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 District of Columbia argued against this standard, believing that the Court should be more deferential to its efforts to curb violence.
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 GOA’s amicus brief, “the Second Amendment establishes its own standard of review for courts to apply -- ‘shall not be infringed.’”
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 GOA in its amicus curiae brief in the case -- the only amicus brief filed supporting Heller.
Kavanaugh echoes GOA’s brief when he says that the Heller I case “neither requires nor permits any balancing beyond that accomplished by the Framers themselves.” That’s the bottom line: the Framers, in the Second Amendment, completely rejected any balancing of our gun rights when they said that our God-given right to arms shall not be infringed.
GOA’s amicus brief also drew from the Supreme Court’s recent decisions. In neither Heller nor McDonald did the Supreme Court adopt a First Amendment balancing test (e.g., rational basis, intermediate scrutiny, or strict scrutiny) as the way to decide Second Amendment cases. Unfortunately, judges reserve to themselves the decision as to whether to use “strict scrutiny” or some other test -- usually based on whether they want the plaintiff or defendant to win. There are no Second Amendment principles at work -- just the personal feelings of the judges.
But Judge Kavanaugh was able to think outside the box of plaintiff Heller and defendant District of Columbia -- and rejected both intermediate and strict scrutiny -- which was exactly what GOA’s brief had urged the Court of Appeals to do!
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 GOA did. For example, in oral argument of the Heller I case, Chief Justice Roberts noted that “none of” the standards of scrutiny “appear in the Constitution ... these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up.” This obscure reference was in the GOA brief, and then used by Judge Kavanaugh.
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.”