Friday, July 20, 2018

The Next Big Second Amendment Question A Justice Brett Kavanaugh Will Have to Decide

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It's Not The Right To Carry Or So Called Assault Weapons Bans

We quite naturally tend to focus upon the actually issues we fight with the gun grabbers over - such as background checks, CCW reciprocity, and gun bans. however, none of these is the most important question the Supreme Court must decide.  That most important question is the level of protection or scrutiny accorded to the 2nd Amendment right.

Obviously, the high court cannot decide every 2nd Amendment issue - or every issue related to free speech, religious freedom or any other right secured by the Bill of Rights.  Instead, SCOTUS must give guidance that lower courts must follow.  The most important guidance, after affirming the right itself is the question of scrutiny.

There are two levels of scrutiny that SCOTUS could decide apply to any regulation of the 2nd amendment right:

1)  Intermediate scrutiny. In order to overcome the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an "important government interest" by means that are "substantially related" to that interest.

In most gun rights cases, this is the standard that has been used - and in spite of using this lessor level of protection, we have seen some huge victories - including two federal appeals courts affirming the right to carry.  So even if we end up with this lower level of protection for our 2nd Amendment rights, we still can win victories.

However, with intermediate scrutiny, we could also lose some important battles.  In cases where lower courts have used this standard, assault weapons bans have been upheld and courts have ruled that there is no right to carry outside the home.  Clearly, this level of protection is not what we want. 

2) Strict Scrutiny.  This is what we want SCOTUS to mandate lower courts to apply to the 2nd Amendment because 90% plus of gun laws would fail this test.  The test has two parts a law must pass in order to be constitutional:

a) Part one test: The law must be pass to address a compelling need or issue.  The word compelling is very strong.  It literally means that government is forced to act.  Essentially, government must prove that they had no choice but to regulate the right.  This is a very hard standard for government to meet.

For instance, it is far from clear that a CCW permitting law could pass this test - given that 13 states now allow carry without a permit.  The more time that passes without major issues, the harder it will be for states to justify requiring a permit.  In fact, it is quite possible that a "compelling need" for permits cannot be proved at this point in time.

b) Part two test:  Least intrusive method of regulation.  Just proving that government has no choice but to regulate is not enough.  Government must also prove that the method chosen is the least intrusive upon the right regulated.  Government cannot use a compelling need to justify chilling or excessive regulation of a right.

For the sake of illustration, let us assume that government can convince a court that it has a compelling interest in assuring that gun owners know how to safely handle and use firearms.  I am NOT saying they can or should do that, but let's assume that they can - they pass the first test.  Does this mean that they can require everyone who wants to own a gun to take a 40 hour class?  Nope.  How about an 8 hour class?  Nope.  Both of these fail because they are not the least intrusive method of addressing the supposed compelling need.  What would be the least intrusive method?  Answer: A simple test - administered at the gun store or online.

For a second illustration, let's assume that the government can convince a court that there is a compelling need for background checks.  Again, I am not saying that this is the case, but I'm just asking that we assume this in order to illustrate the point.  Does this mean that California's background check system with a 10 day wait and one gun per month limits is constitutional? Absolutely not.  Not is a day and age when a background check can be done instantly. Again, even if regulation is permitted, it must be the least burdensome on the right involved - something such as the current federal NICS check might pass this test.

It should be clear by now that if we are able to secure a ruling from the Supreme Court that directs lower courts to apply strict scrutiny to the 2nd Amendment, we will be able to get rid of most of the oppressive gun laws passed in the last 50 years.  For this reason, this is the most important question SCOTUS must answer.  It is also why we need Brett Kavanaugh on the Supreme Court.


  1. One of the best explanations of Strict Scrutiny I have heard.

    Thank you.

  2. You are most welcome - I hope you will check out our Facebook page!