I don’t want to linger on this topic for long, because so many other able-minded and legalese speaking folks are already digging into it (including the NRA-ILA).
I am both heartened and worried about this decision. While the outcome of Kolbe v. Hogan looks favorable to us, it did not actually knock down any law. Rather, it simply says that the lower court did not use an appropriate standard of criticism, and needs to relook at the case using “strict scrutiny.”
In order to pass strict scrutiny, the most difficult of tests to pass, a law must have been passed to further a compelling governmental interest, and must be narrowly tailored to achieve that interest. Cornell Law School states that the application of strict scrutiny requires that the legislature must either have significantly abridged a fundamental right with the law’s enactment.
Alternatively, courts can apply a rational basis test or intermediate scrutiny. Rational basis is the easiest to pass, and to pass the test a law only needs to be rationally related to a legitimate government interest. Intermediate scrutiny, which is what I’ve most often seen applied to 2A cases, means that a law must further an important government interest by means that are substantially related to that interest.
The difference between these three tests is all about the wording. As I have been advised by lawyers and English teachers alike, words have meanings. In this case, we are talking the difference between a legitimate government interest and a compelling government interest. I’ll leave the real legal distinctions to the lawyers, but my understanding is that the former expresses more of a preference while the latter is focused on life/death/national security/fundamental constitutional rights. That is why strict scrutiny is usually applied to things like free speech cases, voting rights, and FOIA requests on classified documents.
Here is what the decision stated,
The strict-scrutiny standard requires the government to prove its restriction is “narrowly tailored to achieve a compelling governmental interest.” Abrams v. Johnson, 521 U.S. 74, 82 (1997); see Citizens United v. Federal Election Comm’n, 558 U.S. 310, 340 (2010) (explaining strict scrutiny “requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest” (internal quotation marks omitted)). To be narrowly tailored, the law must employ the least restrictive means to achieve the compelling government interest. See United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000). Conversely, intermediate scrutiny requires the government to “demonstrate . . . that there is a reasonable fit between the challenged regulation and a substantial government objective.” Chester, 628 F.3d at 683. For several reasons, we find that the Act’s firearms and magazine bans require strict scrutiny.
I bring this up because this is one of the first times that a circuit court has directed that a 2A related law must past strict scrutiny. The decision, which was full of great little nuggets, explicitly calls out the 7th Circuit for failing to apply any type of scrutiny.
We recognize that other courts have reached different outcomes when assessing similar bans, but we ultimately find those decisions unconvincing. The Seventh Circuit, for instance, recently upheld a ban on “assault weapons” and LCMs by dispensing with levels of scrutiny entirely. See Friedman, 784 F.3d at 410. Instead, that court conjured its own test, asking “whether a regulation bans weapons that were common at the time of ratification or those that have some reasonable relationship to the preservation or efficiency of a well regulated militia, and whether law-abiding citizens retain adequate means of self-defense.” Id. (internal quotation marks and citations omitted). The Seventh Circuit’s approach cannot be reconciled with Heller, which looked to present-day use to assess whether handguns are in common use (and consequently protected). See 554 U.S. at 629; see also id. at 582 (“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment.” (emphasis added)). Friedman, on the other hand, ignores the Supreme Court’s specification of present-day focus and asks instead whether certain features of the weapons in question were common at the time of the Founding, effectively elevating a Heller dissent to constitutional canon. Compare Friedman, 784 F.3d at 408-09 (suggesting that present day common use cannot be the relevant test because machine guns were in common use when they were federally banned in 1934 and are now uncommon because of the ban), with Heller, 554 U.S. at 720-21 (Breyer, J., dissenting) (same).
Friedman’s problems stretch beyond its direct contradiction of Heller. For instance, the Friedman opinion defines the scope of the Second Amendment right by reference to militias — but it then declares that states, “which are in charge of militias,” should determine what weapons are rightfully held for militia-related purposes. Friedman, 784 F.3d at 410-11. That course effectively permits states to opt-out of the Second Amendment. But see McDonald, 561 U.S. at 750 (“he Second Amendment right is fully applicable to states.”). Friedman also concludes that the “dangerousness” of the regulated weapons should not be decisive, Friedman, 784 F.3d at 409, but nevertheless dismisses the self-defense-related benefits of those same weapons because they “can fire more shots, faster, and thus can be more dangerous in aggregate,” id. at 411.
And it recognizes that the restriction must be supported by some genuine state interest, but then finds such an interest in the fact that bans might “reduce the perceived risk from a mass shooting.” Id. at 412 (emphasis added). In other words, under the Seventh Circuit’s view, a significant restriction on a fundamental right might be justified by benefits that are quite literally imagined into existence. Needless to say, we see much to question in the Seventh Circuit’s decision.
To me, that’s pretty damning.
Now, why am I worried about where this case could go? At this point, the case will be sent back down to the district court for a “do-over.” That is no guarantee that the decision will flip to one that benefits us. But that is beside the point, really. What we have now is a split between US circuit courts, where some believe the 2A is a fundamental right deserving of strict scrutiny and others believing in a lower standard (or no standard). I’m sure the 9th Circuit (home of California) isn’t far behind with their interpretation.
When there is a split of this type, the Supreme Court is more likely to hear the case and decide it for everyone. While some will shout, “hooray!” in light of the Heller and McDonald decisions in 2008 and 2010, others will point out that the Supreme Court let the aforementioned 7th Circuit Friedman decision stand. The dissent in that case, written by Clarence Thomas, was very good, but a dissent is not law (as pointed out in the above quote by the 4th Circuit).
If this case makes it to SCOTUS to settle a split, I am just not convinced that it would go our way. The 2A seems to be one of those subjects in which you gamble on which party appointed the judge hearing the case. That said, however, my personal observation is that the laws and court cases in our country have been on a steady march towards more individual freedom (same sex marriage, drug law, voting rights, speech rights, etc.) I can only hope that the highest court keeps with that philosophical consistency.