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”).""