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#DearFindLaw: What's Up With Guns, Scrutiny, and Standards of Review?

By Casey C. Sullivan, Esq. | Last updated on

At FindLaw, we love to get questions from our readers. So when you ask, we try to answer. One reader recently wrote us to wonder about the relationship between judicial scrutiny, appellate standards of review, and recent Second Amendment cases. In sum: what's up with all that?

The question actually goes to the heart of legal battles over concealed carry laws, assault-weapon bans, and Second Amendment rights. And it's bound to come before the Supreme Court, sooner or later. Let's dive in.

Standards of Review, Standards of Scrutiny

To start with the basics, "standard of review" refers to the amount of deference given by a higher court to a lower court or tribunal's ruling. These range from the highly deferential "arbitrary and capricious" standard in administrative law to the not-deferential-at-all de novo review applied to questions of law. These standards can be established through statute or precedent.

But since this question is about guns, the more important factor is judicial scrutiny. Judicial scrutiny refers to the level of inquiry judges exercise when evaluating laws, rather than decisions. (Decisions about laws are reviewed de novo, with no deference given to the lower court.)

When constitutional rights are at issue, courts apply three levels of scrutiny: strict scrutiny, intermediate scrutiny, or rational basis review. These levels of scrutiny are established by Supreme Court precedent.

(Ironically, strict scrutiny, often described as "strict in theory, fatal in fact" was first adopted in Korematsu, one of the Supreme Court's biggest civil rights failures.)

Bringing in the Guns

These levels of scrutiny are incredibly important when reviewing Second Amendment claims. As our reader (who, by the way, asked a much more sophisticated question than 'what's up with that?') notes:

The majority in Peruta [v. County of San Diego, a recent 9th Circuit opinion upholding stringent concealed carry restrictions] outline a historical record that seems to support the ruling. Yet the dissent says their "approach is contrary to Heller, and contrary to the prescribed method for evaluating and protecting broad constitutional guarantees."

And there's the rub. When a law burdens a fundamental constitutional right, strict scrutiny applies and the law is most often struck down.

But there is strong disagreement over the sort of rights the Second Amendment affords. D.C. v. Heller, which first found an individual right to possess firearms, is only eight years old. And the case, though landmark, included ambiguous and limiting language.

As a result, courts have struggled to determine what rights gun control measures touch upon and what scrutiny to apply to those laws.

Circuits Split, Sometimes With Themselves

The Ninth Circuit applied intermediate scrutiny to a ban on high-capacity magazines in 2015. But their en banc decision in Peruta did not, finding that the Second Amendment conferred no right at all as far as concealed carry permits are concerned. As such, concealed carry restrictions do not require heightened scrutiny, the court held. (But even if it did, the restrictions would pass muster, the Ninth added for good measure.) Hence the dissent, which argues that anything less than intermediate scrutiny is inappropriate.

Other circuits have also struggled with the question of Second Amendment scrutiny. In February, the Fourth Circuit applied strict scrutiny to bans on high-capacity magazines and semiautomatic weapons. Shortly thereafter, the Seventh Circuit, in an opinion upholding an assault weapon ban, largely ignored the issue of scrutiny, saying that such questions were "inquiries that do not resolve any concrete dispute."

Which is to say, there is still a very active debate on how to review such claims.

And it's a debate that the Supreme Court has yet to address. On Monday, the Court declined to hear a challenge to assault weapons bans in New York and Connecticut, refusing an opportunity to clarify the reach of the Second Amendment, the rights afforded under it, and the proper level of scrutiny to be applied.

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