Clayton Cramer's Corner - Brought to you by Firearms Policy Coalition

The U.S. Supreme Court handed down decisions in D.C. v. Heller (2008) and McDonald v. Chicago (2010) that recognized that the Second Amendment protected an individual right to keep and bear arms and found that state and local governments were obligated to recognize that right.  As a result, many people just assumed that gun control was dead in our country.  But many federal judges are apparently channeling Alabama Governor George Wallace’s famous 1963 speech in which he expressed his reaction to the Supreme Court’s decisions that ruled government-enforced racial segregation wasunconstitutional: “segregation today… segregation tomorrow… segregation forever.”  But federal judges are a bit less obvious in their rebellion than Gov. Wallace was.

A good example is the recent decision New York State Rifle and Pistol Association, Inc. v. Cuomo (2^nd Cir. 2015).  (If you aren’t used to reading legal documents, here’s a start: The names of the parties are the names on either side of “v.”  The numbers between the parentheses identify what court made the decision, and what year; “2^nd Cir.” means U.S. Court of Appeals, 2^nd circuit.  Year only usually means U.S. Supreme Court.  And as much as it might surprise you, many of these decisions are surprisingly easy for non-experts to read and understand.  There is a bit of legal terminology but most of it is pretty simple once you  look up the terms and make an effort to understand them.)

This decision involved challenges to laws passed by both New York and Connecticut banning “assault weapons” and high capacity magazines after the Newtown school shooting tragedy.  The Court of Appeals engaged in a very clever but dishonest approach to essentially say, “Gun control today… gun control tomorrow… gun control forever.”  In this article we will explain their clever dishonesty.  Now, if you are a person of ordinary or above intelligence you are probably wondering how the judges could have ruled that a ban on some semiautomatic guns would not violate the Second Amendment.  This is where the cleverness comes in.

Many people, based on what they learned in American Government class in high school, assume that judges are required to strike down any law that is contrary to the text of the Constitution or its amendments.  In the nineteenth century there were plenty of judges who understood this.  As the Georgia Supreme Court in 1846 expressed it, striking down a law that banned the sale or carrying of concealable handguns for being contrary to the Second Amendment: “The provision is general in its nature and unrestricted in its terms; and the sixth article of the Constitution declares, that the constitution shall be the supreme law of the land, and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary not withstanding.”  This standard of review might be categorized as “The Constitution says Not.  Not means No.”  (As in “the right of the people to keep and bear arms shall not be infringed.”)

Today, our legal system is far more sophisticated than that.  Now, when you challenge the constitutionality of a law, the courts do not ask, “Does the Constitution prohibit the government from acting in this area?”  Instead, they ask, “Is this an area where the Constitution limits the government’s authority?  If so, is there a way to balance a legitimate governmental interest with the rights that the Constitution protects?”  (In the case of some federal judges, the thought process is more like, “Oh dear.  What excuse shall I come up with this time to tell the peasants to put down their pitchforks and torches and leave the castle alone?”)

Now, at this point, I was going to write you a short history of how we went from that “Not means No” standard of review to the system that we have now, but as I started writing it, I realized that it would either bore you silly, or worse, encourage you to pull out your pitchforks, light the torches, and start looking for your nearest law school.  So I will just tell you what the standards of review are.

Rational Basis

At the bottom of the list is “rational basis” review.  Is there a rational connection between the law that the legislature has passed, and some legitimate governmental purpose?  If a state legislature required everyone to wear light blue in public, this would fail the “rational basis” test, because there is no legitimate governmental purpose to such a law.  (Bright yellow or crimson red to reduce pedestrians run over by inattentive drivers might survive.)

I can agree with some of the cases in which the Court has decided that there was no rational basis for the law, such as the Oregon law that prohibited Catholic private schools.  There was no rational connection between a legitimate governmental interest, and the law.  The law was passed because the KKK was temporarily quite strong in Oregon, and the purpose of the law was to drive Catholics out of the state.   (Other parts of this KKK-inspired law remain on the books with the active support of the ACLU.)

City of Cleburne v. Cleburne Living Center (1985) is another such case.  A city zoning ordinance that prohibited a group home for the mentally retarded had no basis in any legitimate governmental purpose;[1] the neighbors simply didn’t want this rather depressing situation in the neighborhood.

In other cases, I am quite sure that there was a rational basis for the law, which the Court simply refused to admit.  A Nebraska law prohibited teaching modern foreign languages to children below eighth gradeMy guess is that this was an attempt to get all immigrant children speaking English, not their parents’ tongue.  It could probably be defended as necessary to create a cohesive American society.

Heightened Scrutiny

Next up is what the Court calls “heightened scrutiny” or “intermediate scrutiny.”  In many of these cases, the Court has ruled that a law that violates the equal protection clause of the Fourteenth Amendment can still be upheld, but it “must serve important governmental objectives and must be substantially related to achievement of those objectives.”  In the first such case, the law set a different age limit for males and females for purchasing 3.2% alcohol content beer.[2]  In several cases, the Court has recognized that there can be legitimate governmental interests in laws distinguishing between men and women, such as the draft.

Strict Scrutiny

The highest standard of review is “strict scrutiny.”  For a law that interferes with a Constitutional right to survive this standard, it must meet three tests:

1. There must be a compelling governmental interest. Not: this would make everyone happy, but something that is generally recognized as a necessary governmental function—like public safety.
2. The law must be narrowly tailored to achieve that end. The law should affect only those who are the problem—but not those who are not a problem.  Think of this as the Goldilocks problem.  The law’s target can’t be too broad, and can’t be too narrow.  If you write a law that affects people who aren’t the problem you are trying to fix, then the Court says, “Overbroad.  Struck down.”  If you then rewrite the law narrowly, so that it only gets some of the people that you are trying to affect, then the Court says, “Underinclusive.  Struck down.”  Not surprisingly, it only takes a few times through this process before legislatures decide not to keep fighting the courts.
3. The law must use the “least restrictive means” to achieve that end. If there are two different ways of satisfying a compelling governmental interest, the law better have picked the method that puts the least restraint on whoever needs restraining.

If reading this list of tests makes you think that strict scrutiny is just an excuse for the Court to strike down any law it doesn’t like—you are in good company.  For many years, law professors taught their students, “strict in theory, fatal in fact.”  This meant that if the courts decided that a law should be reviewed under this standard, it was almost certain to be found unconstitutional.  Professor Adam Winkler (who is pretty clearly anti-gun) has recently published a paper that demonstrates that, surprisingly enough, this doesn’t turn out to be true.  Large numbers of laws reviewed under strict scrutiny are found constitutional by the courts.  The three test above are, with respect to gun control laws, generally fatal to the law.  One example is Tyler v. Hillsdale County Sheriff’s Department et al. (6^th Cir. 2014), which struck down a part of the federal law which prohibits anyone who has ever been committed to a mental hospital from gun possession.  In this case, Tyler’s mental illness was long ago and no longer a problem.

As a result, when the judges on the 2^nd Circuit were chanting “gun control today.. gun control tomorrow… gun control forever…” in their chambers while sticking pins into little effigies of AR-15s, they knew that strict scrutiny would never work as an excuse, so they decided that “intermediate scrutiny” was the right standard to use.  Worse, using this standard, they concluded that a ban on particular guns was okay "if adequate alternatives remain for law-abiding citizens to acquire a firearm for self-defense."  Imagine if the courts used this same approach for free speech.  A state law that banned burning American flags would be okay because “adequate alternatives remain for law-abiding citizens to express their disapproval of the U.S. government.”  Of course, you know the Supreme Court has ruled that flag burning is Constitutionally protected free speech.

There is no consistent application of the standards of scrutiny idea.  As near as I can tell, it was largely constructed in the 1960s so that progressives could pick and choose which laws they wanted to strike down and which to uphold.  We can only hope that the U.S. Supreme Court will hear an appeal on this case and swat the 2^nd Circuit’s noses.

Clayton Cramer teaches history at the College of Western Idaho. Clayton completed his BA in History (Computer Science minor) at Sonoma State University in 1994, and his MA in History from Sonoma State University in 1998. Cramer has been cited in numerous decisions, including by the United States Supreme Court.

The views expressed in this article are those of the author and do not necessarily reflect the views or opinions of any organizations.