The second amendment is the basis for American freedom to own firearms. The rights enumerated in the Bill of Rights have a special place in American law as the most fundamental rights accorded by the Constitution. However, courts – including the current US Supreme Court – have not given the right to bear arms the same status as have been given to the other rights enumerated in the Bill of Rights. This second tier status means that many rights that would seem to along with a reasonably clear amendment don’t exist. With all the outcry about gun legislation, there is not the corresponding outcry about gun jurisprudence and in many ways the jurisprudence is more important. The problem centers on a legal concept called judicial review.
In the U.S., legislatures are pretty much free to pass whatever laws they want without regard to whether they are Constitutional. It’s then up to the courts to decide whether the law can be enforced. When a court reviews a law restricting your behavior or interfering with your rights, there are three possible bases by which it can evaluate the law: rational basis, heightened scrutiny, and strict scrutiny. A rational basis review says that the law only requires some reasonable explanation and can’t be completely stupid. Heightened scrutiny is much more demanding and says that the government needs to have a compelling interest in restricting your rights or the law is invalidated. Strict scrutiny is the most stringent standard. A law only passes strict scrutiny review if it passes 3 tests:
a) There must be a very compelling govt interest in the goals of the law
b) The law needs to be narrowly tailored to meet those goals
c) The law needs to be the least restrictive way to achieve those goals.
There is an adage in law school that strict scrutiny means “strict in theory, impossible in fact” which means that laws subjected to strict scrutiny are almost always thrown out by courts (this adage might not be entirely true). Laws that are subject to strict scrutiny are those which interfere with your “fundamental” rights which is usually interpreted to mean those enumerated in the Bill of Rights. Except the right to bear arms. Gun laws are never subject to strict scrutiny and, if they were, many of them would be tossed.
A recent example is the 2012 Kachalsky, et.al. vs Westchester County case heard by the NY 2nd Circuit Court. The case was a loss for the second amendment and the Supreme Court refused to hear it letting the lower court ruling stand. Kachalsky and other gun owners applied for concealed carry permits in NY and were required to show “proper cause”. “Proper cause” in NY is not defined anywhere but in applications it means that you are a cop or Al Jazeera is publishing daily increases on the reward for the executing the fatwa on you. Kachalsky and company reasonably felt that this represented infringement under the second and sued Westchester for denying their carry permits.
If James Madison rode up on his horse and was reading this article, I’m pretty confident he would say “Well, the right to bear arms is fundamental and given by the second amendment. The state would have a serious burden to overcome in showing that there was a compelling government interest in not giving carry permits to Mr. Kachalsky and friends and that this was the narrowest and least restrictive way to do it.” In other words, we should expect that the Court would apply strict scrutiny and toss the restrictive law. But that didn’t happen. The Court applied heightened scrutiny to the law and said that NY had a compelling interest in reducing gun violence and that the carry law reduced gun violence because NY said it did. Mr. Kachalsky and friends need to leave their guns at home. Now if Mr. Kachalsky was complaining about a law that interfered with his speech, his religion or his right to keep British soldiers out of his house he would get strict scrutiny because those rights are more fundamental than his right to bear arms.
This is, of course, well-known to attorneys and other legal scholars more well-versed than I am including Dr. Robert Levy, Senior Fellow at Cato Institute who was the driving force behind the 2010 DC vs Heller decision at the Supreme Court. Levy won an impressive victory for gun rights in that case, invalidating DC’s handgun ban, but he wanted somewhat more. He wanted the Supreme Court to apply strict scrutiny to the law, thus setting a precedent so that strict scrutiny could be applied to other gun laws (including presumably NY’s concealed carry law). The Court apparently discussed the appropriate level of scrutiny to apply to gun laws “exhaustively”…and then left it out of the majority decision. To get insight into the discussion we need to read Justice Stephen Breyer’s dissenting opinion “But the majority implicitly, and appropriately, rejects [applying strict scrutiny] by broadly approving a set of laws … whose constitutionality under a strict scrutiny standard would be far from clear.”, i.e., SCOTUS rejected strict scrutiny by voicing its approval of laws that would be rejected under strict scrutiny review.
Breyer continues “Indeed, adoption of a true strict-scrutiny standard for evaluating gun regulations would be impossible. That is because almost every gun-control regulation will seek to advance (as the one here does) a ‘primary concern of every government-a concern for the safety and indeed the lives of its citizens.'”, i.e., we can’t apply strict scrutiny because the government would always have a compelling interest in any gun ban because guns kill people. Breyer then proposes some radical new standard of judicial review which everyone else ignores leaving him to write his lonely dissenting opinion.
So Breyer, the majority opinion, the NY Circuit Court, and James Madison all disagree. Breyer believes that strict scrutiny is inappropriate because all gun bans would be legal under strict scrutiny. The majority at SCOTUS likes the laws that strict scrutiny would invalidate so they won’t apply strict scrutiny. The NY Circuit Court won’t apply strict scrutiny because the second amendment doesn’t deserve it. James Madison (who rode a horse at the front of his troops against the British Army) was quite aware that guns kill people and felt that the Right to Bear Arms was so fundamental it needed to be included in the Bill of Rights. Though he didn’t know the term “strict scrutiny”, the idea that such a fundamental right would not be accorded the same respect as the others enumerated in the Bill of Rights would surely raise his hackles.