Constitution Check: Should gun control laws have to pass the toughest constitutional test?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at a federal appeals court decision that requires the strictest constitutional test for a law that restricts assault weapons ownership.


“Strict scrutiny is the appropriate level of scrutiny to apply to the [Maryland] ban of semi-automatic rifles and magazines holding more than 10 rounds….For a law-abiding citizen who, for whatever reason, chooses to protect his home with a semi-automatic rifle instead of a semi-automatic handgun, or possesses a large-capacity magazine for use in firearms kept in the home, the [Maryland ban] significantly burdens the exercise of the right to arm oneself at home….The right to self-defense is largely meaningless if it does not include the right to choose the most effective means of defending oneself….We recognize that other courts have reached different outcomes when assessing similar bans, but we ultimately find those decisions unconvincing.”

 – Excerpt from a decision on February 4 by the U.S. Court of Appeals for the Fourth Circuit, establishing the most demanding test of constitutionality for a state law if it imposes a significant burden on the Second Amendment right to keep and bear arms.  No other federal appeals court has imposed such a rigorous test in judging gun control laws.  The Fourth Circuit’s 2-to-1 decision in the case of Kolbe v. Hogan was written by Chief Judge William B. Traxler, Jr.

“To put it mildly, it troubles me that, by imprudently and unnecessarily breaking from our sister courts of appeals and ordering strict scrutiny here, we are impeding Maryland’s and other states’ reasonable efforts to prevent the next Newtown – or Virginia Tech, or Binghamton, or Fort Hood, or Tucson, or Aurora, or Oak Creek, or San Bernardino.”

 – Excerpt from the dissenting opinion of Circuit Judge Robert B. King in the case of Kolbe v. Hogan.


 Over more than seven decades, the Supreme Court slowly has worked out the constitutional tests to be used when judging laws that interfere with or deny civil rights.  That has not been an entirely satisfying effort (some of the categories seem imprecise and even overlapping), and some of the current Justices would like to do away with this hierarchy of tests.  The majority, though, is not yet ready even to consider that seriously.

The idea that the constitutionality of some laws should be judged in court by a more demanding standard originated in what is clearly the most famous footnote ever put into a Supreme Court decision: footnote 4 in United States v. Carolene Products, in 1938.

In that case, the court upheld a New Deal era regulation of “filled milk” (a variety of milk substitutes) because those products were considered to be adulterated.   The law was upheld using the easiest constitutional test: if a law has any reason behind it, even if it is a potential reason that the legislature did not explicitly have in mind, the law ordinarily will be upheld.

Footnote 4, however, suggested that a law that falls more heavily on minorities, or a law that seems immune to repeal by the normal political processes from which minorities are excluded, should be judged in court by “a more exacting standard.”  That is, a test that is more demanding than “rational basis.”

The court has since recognized two such tougher tests: a law may be subjected to “intermediate scrutiny” or “strict scrutiny.”  The intermediate test is: does the law serve an “important government interest,” and does it actually operate in a way that is “substantially related” to that interest?  The strict test is: does the law serve a “compelling government interest,” does it operate in a way that is “narrowly tailored” to that interest, and is it “the least restrictive” means of serving that interest?   Very few laws can survived that test.

For the time being, the classic example of using “intermediate scrutiny” is in judging laws that treat the sexes differently based on stereotypes about the sexes, and the classic example for using “strict scrutiny” is in judging laws based on race.

It is not absolutely necessary, in a constitutional case, for the Supreme Court or lower courts to use one of the three tests.  For example, the court has built up a significant stack of gay rights decisions without specifying what test it has been applying.

But in today’s arenas of constitutional combat, there is no more heated debate than there is over the standard that courts are to use to judge the validity of gun control laws.  Eight years ago, the court for the first time recognized in the Second Amendment a personal right to have a gun, at least for self-defense in the home (District of Columbia v. Heller).   Because that is a basic right, the court said then, a gun control law that would interfere with that right must be judged by something more demanding than “rational basis.”  But it did not choose which of the higher levels should be the test.

The Justices have had many opportunities since 2008 to confront that issue and settle it.  But they have opted to remain out of the fray, and leave the interpretation to the lower courts – at least for the time being.

Until last week, all of the federal appeals courts that had ruled on the issue declared “intermediate scrutiny” to be the proper test.  As a result, a number of gun control laws – like a ban on “assault weapons” of a kind used in various mass shootings – have been able to satisfy that test, and thus were upheld.

Now, the ranks have been broken.  A federal appeals court that sits in Richmond, Va., last week declared that a Maryland law banning assault weapons (the law was prompted by the use of an assault weapon in the Newtown, Conn., school massacre) would have to pass the “strict scrutiny” test.   It did not strike down the law, but instead ordered a federal trial court to apply that test to determine the law’s constitutionality.

The state of Maryland now has two options to try to protect its ban on assault weapons and high-capacity bullet containers (magazines) rather than take it chances with the “strict scrutiny” hurdle: it can ask the full Fourth Circuit Court to reconsider the three-judge panel ruling, or it could go to the Supreme Court, now or later.

It usually takes a split in the lower federal appeals courts in how they decide a major issue to get the Justices to be interested.  Only the court can settle the question.

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