Ruling in Heller II challenge to DC's replacement laws
Ruling by the DC Circuit is here.
On a quick read, it applies intermediate scrutiny. It picks up on the Heller language about longstanding regulations being presumptively allowable, and reads that broadly to mean regulations that have been around for decades, not those known to the Framers. (Why regulation of a right would be OK if the idea of regulation had been known for some time is unclear, but so is the reference to it in Heller). It concludes that DC's new registration requirements aren't supported by the present record and remands to take more evidence on them. On "assault weapon" and large cap magazine bans. It concludes those are "in common use" and thus protected by the right to arms, but that the ban survives intermediate scrutiny since other arms more suitable for self-defense are allowed and there isn't a showing that these are particularly suited for self-defense.
Judge Kavanaugh dissents (and the majority adds an appendix to reply to him). "In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny."
He goes on, in a very impressive opinion:
"The Supreme Court struck down D.C.’s handgun ban because handguns have not traditionally been banned and are in common use by law-abiding citizens, not because the ban failed to serve an important government interest and thus failed the intermediate scrutiny test. And the Court endorsed certain gun laws because they were rooted in history and tradition, not because they passed the intermediate scrutiny test.
One final aside about the appropriate test to apply: Even if it were appropriate to apply one of the levels of scrutiny after Heller, surely it would be strict scrutiny rather than the intermediate scrutiny test adopted by the majority opinion here. Heller ruled that the right to possess guns is a core enumerated constitutional right and rejected Justice Breyer’s suggested Turner Broadcasting intermediate scrutiny approach. And McDonald later held that “the right to keep and bear arms” is “among those fundamental rights necessary to our system of ordered liberty.” 130 S. Ct. at 3042.
For those fundamental substantive constitutional rights that the Court has subjected to a balancing test and analyzed under one of the levels of scrutiny – for example, the First Amendment freedom of speech and the rights protected by substantive due process – the Court has generally employed strict scrutiny to assess direct infringements on the right. See, e.g., Citizens United v. FEC, 130 S. Ct. 876, 898 (2010) (First Amendment strict scrutiny in context of infringement on “political speech”); Boy Scouts of America v. Dale, 530 U.S. 640, 648 (2000) (First Amendment strict scrutiny in context of infringement on freedom of association); United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000) (First Amendment strict scrutiny in context of content-based speech regulation); Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (substantive due process doctrine “forbids the government to infringe fundamental liberty interests . . . unless the infringement is narrowly tailored to serve a compelling state interest”) (internal quotation marks and alteration omitted); see generally Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. REV. 1267, 1271 (2007) (“the Supreme Court adopted the strict scrutiny formula as its generic test for the protection of fundamental rights”).""
I'm still interested in how Heller should affect a variety of items that were successfully persecuted under the basis that they aren't "militia weapons" - but would be perfectly reasonable under the criteria "self-defense".
The so-called "sawed-off shotguns" are "the" house defense weapon. Pepper spray and other small non-pistols are "non-militia" weapons as well and restricted in some places. But undeniably useful from a self-defense standpoint.
Posted by: Al at October 4, 2011 09:59 PM
On "assault weapon" and large cap magazine bans. It concludes those are "in common use" and thus protected by the right to arms, but that the ban survives intermediate scrutiny since other arms more suitable for self-defense are allowed and there isn't a showing that these are particularly suited for self-defense.
It is ironic to me that such a showing should be necessary. These items (particularly the magazines) are regularly utilized by non-specialized law enforcement agencies. As police use of deadly force is supposed to be for defensive purposes only, the suitably of these items for self-defense should be a given.
Posted by: chuckatpdo at October 4, 2011 10:44 PM
There are so many "Richards" being stepped on in this opinion that you know it will be accepted for review at higher levels, and the probability of reversal, in light of McDonald, is very high.
Posted by: AD at October 5, 2011 12:12 AM
If the private individual citizens of a society cannot be entrusted with the strict liability and responsibilities of firearm use and ownership, how can such a population be entrusted with any authority or promise of sustainable self-governance?
The second amendment selects for a competent society; selects for individuals who are competent to stand with their fellow citizens in both the operation and the defense of that society and its government. We are missing the "natural intelligence" of our founders and their working grasp of what today would be called applied biology, sociobiology and evolutionary biology. They were not separated from nature's patterns by technology and built structures as we are today. There is little doubt they saw the significance of the second amendment to a societies general cultural fitness to remain sustainably self-governing while staying rooted in mutual liberty.
How is it better we live disarmed at the pleasure of armed others who are either protected by the absence of conscience or the absence of recourse?
Posted by: willem at October 5, 2011 02:24 AM
You mean the NRA lost another court case? Halbrooke isn't doing so well is he? Williams turned down, now this.....why the hell can't he fight one item at a time? Heller is a tool.
Posted by: 5thofNov at October 5, 2011 02:39 AM
I think that all newspaper publishers should be licensed by the government after passing regular background checks and paying a licensing fee. If you apply the intermediate level of scrutiny the D.C. Circuit regularly uses for fundamental rights enumerated in the Bill of Rights, see Heller II, the government has an important interest in ensuring that the publishers of large circulation newspapers aren't advancing a criminal or Communist agenda, and the minor inconvenience of being required to visit a police station, sign a certification and provide fingerprints, prior to publishing, doesn't really amount to a prior restraint on free speech. After all, the DC Metro police are public servants, unbeholden to city government interest groups, and will process all applications in due course.
Posted by: Some Guy at October 5, 2011 06:14 AM
What part of 'shall not be infringed' do lawyers keep having problems with? Looks like a bright line test to me.
I propose a basic test that even lawyers can understand:
Does this infringe?
(OK, for lawyers - yes, I mean even the least little tiniest bit. What we're looking for here is 'not a jot, not a tittle' - and I haven't seen one of those in a long time)
If yes, toss.
I know, it's waaaaay too complex for lawyers. Give the problem to a third-grader.
Posted by: Bill Johnson at October 5, 2011 06:46 AM
These people (I hesitate to call them judges) are using rationalization to get the result they want. They never let the facts of a case, or the constitution, get in the way of their social engineering goals.
Posted by: rspock at October 5, 2011 07:17 AM
Does anyone know if an appeal is in the cards?
Posted by: Jeff at October 5, 2011 09:56 AM