Heller v. D.C., Part Deux- District Court applies Intermediate Scrutiny, Upholds D.C.’s Gun Control Laws

March 26th, 2010

In an opinion from the District Court for the District of Columbia by Judge Urbina, the court upheld the District’s gun ban. (H/T Tony Mauro)

Of special interest, is that the Court decided to apply intermediate scrutiny. This was a question left unresolved in Heller, and was a position advanced by the Solicitor General in 2008:

For the reasons explained below, this court joins numerous other courts in concluding
that intermediate scrutiny is the appropriate standard of review. As an initial matter, the court
rejects the defendants’ contention that the “reasonableness test” should be applied to Second
Amendment challenges in the post-Heller era. The reasonableness test, as the defendants
characterize it, would require the court to uphold a law regulating firearms so long as the
legislature had “articulated proper reasons for acting, with meaningful supporting evidence,” and
the measure did “not interfere with the ‘core right’ the Second Amendment protects by depriving
the people of reasonable means to defend themselves in their homes.” Defs.’ Cross-Mot. at 15.
Prior to Heller, this was the test used almost uniformly by state courts. See id. at 18.
In Heller, however, the Court emphasized for the first time that some form of heightened scrutiny is necessary in light of the fact that the right at issue is a specific, constitutionally enumerated right.
Heller, 128 S. Ct. at 2817 & n.27. The reasonableness test subjects firearms laws to only a
marginally more heightened form of review than rational-basis review.
The court cited Adam Winkler’s Pre-Heller article to articulate the relevant standard of review.
[w]hile there is a difference in focus between [the reasonableness test and rationalbasis
review], in ordinary practice both standards are extremely deferential. Rational
basis review has been characterized as “virtually none in fact” because nearly every
law subject to it survives judicial scrutiny. Similarly, nearly all laws survive the
reasonable regulation standard, thus giving wide latitude to legislatures. As the
Illinois Supreme Court noted, the right to bear arms is subject to “substantial
infringement.” Like rational basis, the reasonable regulation standard tends to be,
more than anything else, shorthand for broad judicial deference. Adam Winkler, Scrutinizing the Second Amendment, 105 MICH. L. REV. 683, 718-19 (2007).
The court though rejects Justice Breyer’s interest balancing approach:
Because the court believes that the reasonableness test would subject the contested provisions to a more lenient measure of scrutiny than that envisioned by the Heller Court, the court rejects the defendants’ assertion that the reasonableness test applies to laws regulating firearms in the post- Heller era.
Nor does the court read Heller as advocating a test akin to the “undue burden” test used in
the abortion context. The Heller majority squarely rejected Justice Breyer’s proposed “interestbalancing”
framework, under which courts would “ask[] whether the statute burdens a protected
interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon
other important governmental interests.” Heller, 128 S. Ct. at 2821.
The court expressly rejected strict scrutiny:
As many courts have recognized, the Supreme Court did not explicitly hold that the
Second Amendment right is a fundamental right, despite the fact that it stated that “[b]y the time
of the founding, the right to have arms had become fundamental for English subjects” and noted
that Blackstone “cited the arms provision of the Bill of Rights as one of the fundamental rights of
Englishmen.” Id. at 2798. If the Supreme Court had wanted to declare the Second Amendment
right a fundamental right, it would have done so explicitly. The court will not infer such a
significant holding based only on the Heller majority’s oblique references to the gun ownership
rights of eighteenth-century English subjects.
Moreover, as the Heller dissent and numerous other courts and legal scholars have
pointed out, a strict scrutiny standard of review would not square with the majority’s references
to “presumptively lawful regulatory measures” such as laws prohibiting firearms possession by
felons and the mentally ill, forbidding the carrying of firearms in schools or government
buildings and imposing conditions and qualifications on the commercial sale of arms.
In summary, here is the test the court proffers:
In sum, to assess the constitutionality of each of the challenged provisions, the court will
begin by determining whether the provision at issue implicates the core Second Amendment
right. If it does not, then the court will uphold the regulation. If the regulation does, however,
implicate the core Second Amendment right, the court will apply intermediate scrutiny to
determine whether the measure is substantially related to an important governmental interest.