Gun Controllers Need Not Fear 'Intermediate Scrutiny'


This news is a couple of weeks old, but I don't think anyone here has discussed it yet: Last month a federal judge upheld the firearm regulations that Washington, D.C., enacted after the Supreme Court overturned its gun ban in the 2008 case D.C. v. Heller. Dick Heller, the lead plaintiff in the Supreme Court case, challenged the new rules, arguing that D.C.'s onerous gun registration requirements, its ban on "assault weapons," and its prohibition of magazines holding more than 10 rounds violate the Second Amendment. U.S. District Judge Richard Urbina disagreed, saying all of the regulations are "substantially related to an important governmental interest," as required by "intermediate scrutiny."

In his ruling, Urbina settles on that standard of review after rejecting the District's argument that he should apply the highly deferential "rational basis" test. He notes that the Supreme Court precluded that approach in Heller. "If all that was required to overcome the right to keep and bear arms was a rational basis," it said, "the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect." But Urbina adds that the Court did not explicitly endorse "strict scrutiny," which requires that a law be "narrowly tailored" to advance a "compelling governmental interest" (although the Court did say that the Second Amendment was designed to protect a "pre-existing" right that was viewed as "fundamental," a description that implies strict scrutiny).

Urbina's application of intermediate scrutiny in this case amounts to asking whether D.C. officials claim to have good reasons for their regulations. He is not at all skeptical of their assertion that the District's complicated, frustrating, time-consuming requirements for gun ownership, which he notes "are more burdensome than those of most cities and states," will promote public safety. Likewise, he uncritically accepts the District's claims that "assault weapons are disproportionately likely to be used by criminals" and "are not generally recognized as particularly suitable or readily adaptable to sporting purposes," even though Heller refuted both of those assertions. Because the D.C. Council "held extensive hearings and heard from numerous witnesses," Urbina is not interested in considering the evidence on these issues.

Tellingly, Urbina does not even explain what assault weapon means, perhaps because providing the District's definition (PDF) would show how arbitrary this category is. In addition to banning dozens of pistol, rifle, and shotgun models by name, D.C. prohibits weapons that meet certain criteria. For example, a rifle is prohibited if it accepts a detachable magazine (as all semiautomatic rifles, with a few obscure exceptions, do)* and has any of these features:

(aa) pistol grip that protrudes conspicuously beneath the action of the weapon;

(bb) A thumbhole stock;

(cc) A folding or telescoping stock;

(dd) A grenade launcher or flare launcher;

(ee) A flash suppressor; or

(ff) A forward pistol grip.

As is typically the case with "assault weapon" bans, the disqualifying criteria have more to do with a scary "military-style" appearance than with features that make a practical difference in urban crime (and that's assuming D.C.'s gang-bangers are keen to follow gun regulations, in which case any with criminal records would already be barred from owning firearms). These laws make so little sense, gun control scholar Dave Kopel argued back in 1994, that they should fail even a "rational basis" test.

D.C. abandoned its post-Heller attempt to ban all semiautomatic pistols, which would have made revolvers the only viable option for law-abiding residents who wanted a handgun for self-defense. Since semiautomatic pistols are by far the most popular self-defense choice, that ban clearly conflicted with the Supreme Court's ruling, which said the Second Amendment guarantees the right to possess weapons "in common use for lawful purposes." By narrowing its focus to "assault weapons," the District took advantage of Heller's reference to "dangerous and unusual" firearms that can be banned without violating the Second Amendment. That's why the question of whether these guns are in fact especially dangerous or unusual is crucial. If "intermediate scrutiny" means that courts will simply accept legislators' conclusions on such matters at face value, it will leave virtually all gun control laws undisturbed. Assuming Urbina's decision is appealed, it could ultimately provide the Supreme Court with an opportunity to clarify the level of scrutiny that should be applied in Second Amendment cases.

Urbina's ruling is here. SCOTUS Blog discusses it here. The NRA, which backed Heller's lawsuit, reacts here. I discuss the development of Second Amendment jurisprudence in the context of another Heller exception, for bans on guns in "sensitive places," here.

More Reason coverage of D.C. v. Heller here.

[*Corrected by alert commenters: Detachable magazines are a very common feature on semiautomatic rifles, but there are notable (i.e., not "obscure") exceptions.]