By Daniel Horwitz:

In the wake of the U.S. Supreme Court’s landmark Second Amendment rulings in District of Columbia v. Heller and McDonald v. City of Chicago, lower courts have grappled with the appropriate standard of scrutiny to apply to Second Amendment claims. Respectively, Heller and McDonald held that the Second Amendment confers an individual right to keep and bear popularly-used firearms in one’s home, and that Second Amendment is applicable against both the states and the federal government alike.  However, neither case articulated a specific standard of scrutiny for evaluating Second Amendment claims.  As a consequence, the full scope of the right to bear arms — such as whether it applies outside the home, whether it applies to handguns alone, and whether it applies only for purposes of self-protection — remains unclear.

The “standard of scrutiny” applied to a particular claim is of critical legal importance and usually determines whether the claim will succeed.  Generally speaking, and simplifying matters considerably, courts use three different standards to adjudicate constitutional claims: (1) rational basis review; (2) intermediate scrutiny; (3) and strict scrutiny.

The first standard — rational basis review — is the most forgiving.  Under rational basis review, a litigant challenging a law on constitutional grounds “bear[s] the burden of proving that it does not bear a rational relation to any conceivably legitimate governmental purpose—even a hypothetical one.”  With vanishingly few exceptions, nearly all laws satisfy this standard.

The second standard, known as “intermediate scrutiny,” raises the stakes considerably.  Under intermediate scrutiny,  the burden shifts to the government to justify the law at issue.  Under this standard — which is used, among other things, to evaluate classifications based on gender — a law “must serve important governmental objectives, and . . . the discriminatory means employed must be substantially related to the achievement of those objectives.”  Further, the government “must carry the burden of showing an ‘exceedingly persuasive justification’ for the classification” at issue.

The third standard of review, which is the most rigorous, is “strict scrutiny.”  Under strict scrutiny, “the government must prove that the challenged law is both narrowly tailored and the least-restrictive means available to further a compelling governmental interest.”  Strict scrutiny applies in areas such as racial and religious discrimination, and it also applies to many claims involving free speech.

After Heller, several competing theories were presented concerning which standard of scrutiny should apply to Second Amendment claims.  For example, one prominent scholar suggested that “courts should recognize that there are four different categories of justifications for a restriction on the right to bear arms,” and proposed that courts apply a different standard depending on the specific justification presented.  Another theorized that courts would adopt the separate “undue burden” standard that is used to evaluate abortion restrictions.  As this author noted back in 2012, though, in light of Heller‘s undefined standard of scrutiny and its expansive language approving certain “longstanding prohibitions on the possession of firearms,” “the post-Heller world has not turned out nearly as well as gun advocates had hoped.”  Instead, “by January 2, 2009, lower courts had issued rulings on all manner of gun control regulations, and . . . the scoreboard was ‘Gun Control 60, Individual Right 0.’”

Since 2012, however, a few courts have starkly deviated from this practice.  For example, in a recent February 4, 2016 opinion that could have significant nationwide consequences, the U.S. Court of Appeals for the Fourth Circuit held that certain category-based “firearms and magazine bans require strict scrutiny.”  Interestingly, the Fourth Circuit’s opinion on the matter also closely mirrors the standard of review analysis that is commonly employed in the realm of the First Amendment.

Notably, one author — First Amendment scholar David Hudson, who is an occasional guest contributor to this blog —  predicted that this might happen.  For example, in a 2012 article entitled “Turning to the First to understand the Second,” Professor Hudson anticipated that in determining the appropriate standard of scrutiny for Second Amendment claims, “many courts will refer to First Amendment free-speech law and its use of different standards of review.  In other words, judges will use the First to understand the Second.”   His most recent article on the matter — “A Continuing Trend: Using the First to Interpret the Second” — further explores this trend.  It is reposted below with permission:

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Re-Posted Upon Request From The Newseum Institute:  See more at: http://www.newseuminstitute.org/2016/02/16/a-continuing-trend-using-the-first-to-interpret-the-second/

By David L. Hudson, Jr.: 

The 4th U.S. Circuit Court of Appeals recently used an analogy to First Amendment free-speech law in upholding a Second Amendment challenge and striking down a Maryland law banning semi-automatic rifles and larger-capacity detachable magazines.

In Kolbe v. Hogan, a divided 4th Circuit panel noted that the Maryland law imposed a near complete ban on these semi-automatic rifles and larger magazines. The appeals court analogized to the First Amendment principle that bans on entire mediums of speech are constitutionally suspect.

The U.S. Supreme Court identified this principle in City of Ladue v. Gilleo (1994), a case involving a ban on yard signs. “Our prior decisions have voiced particular concern with laws that foreclose an entire medium of expression,” the Court explained in the yard-sign case.

The 4th Circuit majority adopted this rationale in interpreting the Second Amendment right to “keep and bear arms,” writing that Maryland’s law banning semi-automatic rifles was “akin” to a law that bans an entire medium of speech.

Courts have examined and developed, over nearly a 100-year period, a complex and intricate body of First Amendment law. However, Second Amendment law is in its nascent phase. The U.S. Supreme Court did not rule that the Second Amendment right to “keep and bear arms” was an individual right until 2008 and it didn’t rule that this principle applied to state and local governments until 2010.

Sometimes, though, courts have used this First-Second connection to reject gun claims. For example, courts have reasoned that just as the First Amendment doesn’t protect all forms of speech, the Second Amendment doesn’t give one an unqualified right to possess any kind of weapon.

David L. Hudson, Jr. is the Ombudsman for the Newseum Institute First Amendment Center. He is the author of Let The Students Speak!: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011) and Teen Legal Rights.

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Questions about this article?  Email Daniel Horwitz at [email protected].

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