Gun Controllers Need Not Fear 'Intermediate Scrutiny'

Reason ^ | 7 April, 2010 | Jacob Sullum

[marktwain]

This news is a couple of weeks old, but I don't think anyone here has discussed it yet: Last month a federal judge upheld the firearm regulations that Washington, D.C., enacted after the Supreme Court overturned its gun ban in the 2008 case D.C. v. Heller. Dick Heller, the lead plaintiff in the Supreme Court case, challenged the new rules, arguing that D.C.'s onerous gun registration requirements, its ban on "assault weapons," and its prohibition of magazines holding more than 10 rounds violate the Second Amendment. U.S. District Judge Richard Urbina disagreed, saying all of the regulations are "substantially related to an important governmental interest," as required by "intermediate scrutiny."

Urbina settles on that standard of review after rejecting the District's argument that he should apply the highly deferential "rational basis" test. He notes that the Supreme Court precluded that approach in Heller. "If all that was required to overcome the right to keep and bear arms was a rational basis," it said, "the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect." But Urbina adds that the Court did not explicitly endorse "strict scrutiny," which requires that a law be "narrowly tailored" to advance a "compelling governmental interest" (although the Court did say that the Second Amendment was designed to protect a "pre-existing" right that was viewed as "fundamental," a description that implies strict scrutiny).

Urbina's application of intermediate scrutiny in this case amounts to asking whether D.C. officials claim to have good reasons for their regulations. He is not at all skeptical of their assertion that the District's complicated, frustrating, time-consuming requirements for gun ownership, which he notes "are more burdensome than those of most cities and states," will promote public safety. Likewise, he uncritically accepts the District's claims that "assault weapons are disproportionately likely to be used by criminals" and "are not generally recognized as particularly suitable or readily adaptable to sporting purposes," even though Heller refuted both of those assertions. Because the D.C. Council "held extensive hearings and heard from numerous witnesses," Urbina is not interested in considering the evidence on these issues.

Tellingly, Urbina does not even explain what assault weapon means, perhaps because providing the District's definition (PDF) would show how arbitrary this category is. In addition to banning dozens of pistol, rifle, and shotgun models by name, D.C. prohibits weapons that meet certain criteria. For example, a rifle is prohibited if it accepts a detachable magazine (as all semiautomatic rifles, with a few obscure exceptions, do) and has any of these features:

(aa) pistol grip that protrudes conspicuously beneath the action of the weapon;

(bb) A thumbhole stock;

(cc) A folding or telescoping stock;

(dd) A grenade launcher or flare launcher;

(ee) A flash suppressor; or

(ff) A forward pistol grip.

As is typically the case with "assault weapon" bans, the disqualifying criteria have more to do with a scary "military-style" appearance than with features that make a practical difference in urban crime (and that's assuming D.C.'s gang-bangers are keen to follow gun regulations, in which case any with criminal records would already be barred from owning firearms). These laws make so little sense, gun control scholar Dave Kopel argued back in 1994, that they should fail even a "rational basis" test.

D.C. abandoned its post-Heller attempt to ban all semiautomatic pistols, which would have made revolvers the only viable option for law-abiding residents who wanted a handgun for self-defense. Since semiautomatic pistols are by far the most popular self-defense choice, that ban clearly conflicted with the Supreme Court's ruling, which said the Second Amendment guarantees the right to possess weapons "in common use for lawful purposes." By narrowing its focus to "assault weapons," the District took advantage of Heller's reference to "dangerous and unusual" firearms that can be banned without violating the Second Amendment. That's why the question of whether these guns are in fact especially dangerous or unusual is crucial. If "intermediate scrutiny" means that courts will simply accept legislators' conclusions on such matters at face value, it will leave virtually all gun control laws undisturbed. Assuming Urbina's decision is appealed, it could ultimately provide the Supreme Court with an opportunity to clarify the level of scrutiny that should be applied in Second Amendment cases.

Urbina's ruling is here. SCOTUS Blog discusses it here. The NRA, which backed Heller's lawsuit, reacts here. I discuss the development of Second Amendment jurisprudence in the context of another Heller exception, for bans on guns in "sensitive places," here.

More Reason coverage of D.C. v. Heller here.

[marktwain]

Another good article by Jacob Sullum explaining some of the intricacies of the courts dancing around to deny constitutional rights.

[Seruzawa]

Just another liberal judge. A waste of time to use logic.

[muawiyah]

DC could adopt a simple standard ~ if the Chief Justice has one it’s OK.

[mvpel]

By narrowing its focus to "assault weapons," the District took advantage of Heller's reference to "dangerous and unusual" firearms that can be banned without violating the Second Amendment.

A "dangerous and unusual" weapon is a mustard gas artillery shell, not an M-16 rifle.

[CPOSharky]

...a rifle is prohibited if it accepts a detachable magazine (as all semiautomatic rifles, with a few obscure exceptions, do)

The M1 Garand and SKS are hardly obscure. Pretty darned popular IMHO.

[Wildbill22]

Ruger Mini-14 is one of the most popular rifles out there, not to mention the 10/22, although that is only .22 cal rimfire.

[DuncanWaring]

I don’t think a Garand is covered by said law, because it doesn’t have any of the list of accompanying features (thumbhole stock, pistol grip, flash suppressor, etc).

A No. 5 Enfield (”Jungle Carbine”) is, however, covered, because it accepts a detachable magazine and has a flash suppressor.

Tyrants and morons abound.

[CPOSharky]

Re: Jungle Carbine - A bolt action “assault rifle. Yeah, right.

[RipSawyer]

Don’t say “only” a .22 caliber rimfire. I saw a documentary on TV once about a woman who bought a semi-auto .22 rimfire and went on a shooting spree and killed several people and wounded several others. The weapon shown in the reenactment was a Ruger 10-22 but they never called the name. That little cartridge has killed enough people to fill up a humongous graveyard. Right off the top of my head I can name two young people I knew as a youth who were killed by the same angry woman with a .22 revolver. One was the girl who had been running around with her husband and the boy just happened to be with her when the angry wife found her. The girl died at the scene but the boy spent several years in agony before he finally died from the wounds he carried.

That boy’s story carries a lesson, he said that he got the little gun away from the woman after she shot the girl and put it in his hip pocket. The woman then started acting calm and rational and he relaxed his guard for an instant whereupon she grabbed the gun from his pocket and started shooting him. It was a nine shot model and I think he took the last five rounds at point blank range. If she had had better quality ammo he probably would have died on the spot.

Just to be sure the job was finished the woman ran her car over the girl’s body.

[ClayinVA]

yep, he can’t read either. How you cannot figure out “Shall not be infringed” is even more stronger than “Congress shall make no law”, but Judges are just Politicians in Black Robes that don’t stand for re-election.

[DuncanWaring]

Well, the Enfields are famous for having a quickly-cyclable bolt...

[ClayinVA]

I have a feeling SCOTUS is going to clear up Heller in the McDonald vs Chicago. We may not like it, but they do get tired of repeating themselves and they really don’t like it when they are ignored. A bunch of judges have been ignoring Heller and saying most of it is dicta. I would love to see Thomas write the majority and be very clear that the 2nd amendment means exactly what it says(”SHALL not be infringed”).

[Blue Collar Christian]

“rational basis” and the liberal mindset...I don’t see a connection.

[oyez]

If the government can ban arms based on their magazine capacity or configuration the government can ban swords, archery equipment, spears, kitchen knives and etc.

[William Tell]

DuncanWaring said: "I don’t think a Garand is covered by said law, because it doesn’t have any of the list of accompanying features (thumbhole stock, pistol grip, flash suppressor, etc)."

But a Garand can be equipped with a pistol grip thereby creating a dreaded "assault weapon". The burden needs to be on the government not only to demonstrate that "assault weapons" are dangerous and unusual, but that equipping a rifle with a pistol grip, is what makes it dangerous and unusual. Some might think it strange that the addition of a three-ounce piece of plastic to a rifle justifies outlawing it and sentencing the possessor to ten years in prison.

Setting aside the issue of what our Founders would think of the infringement due to an arm being "unusual", I'm pretty sure they didn't intend to outlaw "dangerous" arms. The danger they feared was that of being disarmed.

[OneWingedShark]

>>By narrowing its focus to “assault weapons,” the District took advantage of Heller’s reference to “dangerous and unusual” firearms that can be banned without violating the Second Amendment.
>
>A “dangerous and unusual” weapon is a mustard gas artillery shell, not an M-16 rifle.

I’m sure they would say that my PS-90 is a “dangerous and unusual” weapon.