Maryland Semi-Auto Ban Remanded to District Court for Strict Scrutiny

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Bartholomew Roberts

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Federal Appeals Court reverses District court on summary judgment, remands for appeal of strict scrutiny:

"We first consider which of the two relevant standards of
scrutiny (strict or intermediate scrutiny) should apply.10 The
strict-scrutiny standard requires the government to prove its
restriction is “narrowly tailored to achieve a compelling governmental interest.” Abrams v. Johnson, 521 U.S. 74, 82
(1997); see Citizens United v. Federal Election Comm’n, 558 U.S.
310, 340 (2010) (explaining strict scrutiny “requires the
Government to prove that the restriction furthers a compelling
interest and is narrowly tailored to achieve that interest”
(internal quotation marks omitted)). To be narrowly tailored,
the law must employ the least restrictive means to achieve the
compelling government interest. See United States v. Playboy
Entertainment Group, Inc., 529 U.S. 803, 813 (2000).
Conversely, intermediate scrutiny requires the government to
“demonstrate . . . that there is a reasonable fit between the
challenged regulation and a substantial government objective.”
Chester, 628 F.3d at 683. For several reasons, we find that the
Act’s firearms and magazine bans require strict scrutiny.

As we have noted on previous occasions, “any law that would
burden the ‘fundamental,’ core right of self-defense in the home
by a law-abiding citizen would be subject to strict scrutiny.
But, as we move outside the home, firearm rights have always
been more limited.” United States v. Masciandaro, 638 F.3d 458,
470 (4th Cir. 2011). “[T]his longstanding out-of-the-home/inthe-home
distinction bears directly on the level of scrutiny
applicable,” id., with strict scrutiny applying to laws
restricting the right to self-defense in the home, see Woollard
v. Gallagher, 712 F.3d 865, 878 (4th Cir. 2013) (observing that
restrictions on “the right to arm oneself at home” necessitates
the application of strict scrutiny). Strict scrutiny, then, is
the appropriate level of scrutiny to apply to the ban of semiautomatic
rifles and magazines holding more than 10 rounds. See
Friedman, 784 F.3d at 418 (Manion, J., dissenting); cf. Heller
II, 670 F.3d at 1284 (Kavanaugh, J., dissenting) (reading Heller
as departing from traditional scrutiny standards but stating
that “[e]ven if it were appropriate to apply one of the levels
of scrutiny after Heller, surely it would be strict scrutiny
rather than . . . intermediate scrutiny”).

We recognize that other courts have reached different
outcomes when assessing similar bans, but we ultimately find
those decisions unconvincing."
 
Can you explain in laymens terms? It sounds like the government has a substantial burden of proof here as opposed to the plaintiff?
 
627PCFan said:
Can you explain in laymens terms? It sounds like the government has a substantial burden of proof here as opposed to the plaintiff?
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We start with understanding that the courts have consistently ruled that constitutionally protected rights are subject to limited regulation.

So if someone challenges a law on the grounds that it impermissible violates or impairs a constitutionally protected right, it is first of all his burden to show that the law does in fact violate or impair a constitutionally protected right. If he has done that, the burden shifts to the government to try to establish that even though the law violates or impairs a constitutionally protected right, the law is a permissible regulation of that right.

There are three tests which can be used to decide if a particular regulation of a particular constitutional right is acceptable (see this thread: Spats McGee’s Federal Constitutional Primer):
1) Strict Scrutiny:

Quote:
Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws. To pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest. A famous quip asserts that strict scrutiny is "strict in name, but fatal in practice."

For a court to apply strict scrutiny, the legislature must either have significantly abridged a fundamental right with the law's enactment or have passed a law that involves a suspect classification. Suspect classifications have come to include race, national origin, religion, alienage, and poverty.

Source: http://www.law.cornell.edu/wex/strict_scrutiny

2) Intermediate Scrutiny:

Quote:
Intermediate scrutiny is a test used in some contexts to determine a law's constitutionality. To pass intermediate scrutiny, the challenged law must further an important government interest by means that are substantially related to that interest. As the name implies, intermediate scrutiny is less rigorous than strict scrutiny, but more rigorous than rational basis review. Intermediate scrutiny is used in equal protection challenges to gender classifications, as well as in some First Amendment cases.

Source: http://www.law.cornell.edu/wex/intermediate_scrutiny

3) Rational Basis:

Quote:
Rational basis review is a test used in some contexts to determine a law's constitutionality. To pass rational basis review, the challenged law must be rationally related to a legitimate government interest. Rational basis is the most lenient form of judicial review, as both strict scrutiny and intermediate scrutiny are considered more stringent. Rational basis review is generally used when in cases where no fundamental rights or suspect classifications are at issue.

Source: http://www.law.cornell.edu/wex/rational_basis
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There's a lot of discussion in the cases about when a particular level of scrutiny applies, and that is generally a major point of contention in constitutional cases.

In this particular case, the District Court (the "trial" level court in the federal system) applied intermediate scrutiny to uphold the Maryland laws being challenged. The Fourth Circuit said that was the wrong level of scrutiny and that the laws need to be evaluated under the more difficult (for the government) strict scrutiny test.

Does that help?
 
What this COULD do is cause SCOTUS to have to take up the assault weapon ban issue.

They rejected the Highland Park suit but now that two different circuit courts have opposing positions (and most certainly Maryland is going to appeal if the district court HAS to come to the decision that the law is unconstitutional) they would then be darn near forced to take up the case.

This is BIG people, really big and it could lead the way to getting rid of all of these idiots bans.
 
This right here is FANTASTIC:

Our distinguished dissenting colleague asserts that we have imprudently and unnecessarily broken with our sister courts of appeal and infers that we will bear some responsibility for future mass shootings. In our view, inferences of this nature have no place in judicial opinions and we will not respond beyond noting this. The meaning of the Constitution does not depend on a popular vote of the circuits and it is neither improper nor imprudent for us to disagree with the other circuits addressing this issue. We are not a rubber stamp. We require strict scrutiny here not because it aligns with our personal policy preferences but because we believe it is compelled by the law set out in Heller and Chester.
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Reading more about the decision reminded me of an important fact:
Gov. Larry Hogan (R) also opposed the ban when it passed the Maryland legislature, but has said he now accepts it as state law.
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MYD has a Republican Governor who possibly opposes the ban. Is he able to direct the MYD AG regarding how the case is handled? Or is that an independent function of the AG?

For example, could the Gov. direct the AG to appeal directly to the SCOTUS instead of pursuing an en. banc hearing (which, given the makeup of the 4th Circuit and its rulings in Wollard et. al., would almost guarantee a reversal)? If he could so direct, that would present the SCOTUS with a very clear circuit split on the matter, re. Freedman v. Highland Park, that is being petitioned by the State.
 
The MD AG does not answer to the Governor ~ In fact AG Brian Frosh is one of the main architects of the over-bearing gun regs in force now; and is a rabid anti-gun activist.

He is Democratic - Governor is Republican - no help here.
 
And back to the kitchen it goes, to be oven-roasted until "Strict Scrutiny" :D

Hopefully they won't just spit on it and send it back out to the diners (I recall a recent-ish case where a lower-level court claimed they had applied strict scrutiny, but was ultimately a 'rational basis/because-I-said-so' argument)

Our distinguished dissenting colleague asserts that we have imprudently and unnecessarily broken with our sister courts of appeal and infers that we will bear some responsibility for future mass shootings. In our view, inferences of this nature have no place in judicial opinions and we will not respond beyond noting this. The meaning of the Constitution does not depend on a popular vote of the circuits and it is neither improper nor imprudent for us to disagree with the other circuits addressing this issue. We are not a rubber stamp. We require strict scrutiny here not because it aligns with our personal policy preferences but because we believe it is compelled by the law set out in Heller and Chester.
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OUCH! Nice contact on that back-hand --ring hand, too :eek:. Glad to hear persons in positions of authority say "how dare you try to shame me that way" for a change, instead of cringing in terror over what their enemies might think.

TCB
 
barnbwt said:
And back to the kitchen it goes, to be oven-roasted until "Strict Scrutiny" :D

Hopefully they won't just spit on it and send it back out to the diners (I recall a recent-ish case where a lower-level court claimed they had applied strict scrutiny, but was ultimately a 'rational basis/because-I-said-so' argument)


OUCH! Nice contact on that back-hand --ring hand, too :eek:. Glad to hear persons in positions of authority say "how dare you try to shame me that way" for a change, instead of cringing in terror over what their enemies might think.

TCB
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So what happens if the lower court does just spit on it and send it out? What is the remedy for such a thing?
 
What part of 'shall not be infringed' is difficult to understand? 'Laws repugnant to the Constitution are null and void' - Marbury v Madison. That is all any court in the USA needs to know; all the rest is B.S. to ensure an endless procession of appeals that is 'job security' for lawyers and judges. IMHO this crap has got to stop or another revolution is a certainty.
 
Shootshellz said:
What part of 'shall not be infringed' is difficult to understand? 'Laws repugnant to the Constitution are null and void' - Marbury v Madison. That is all any court in the USA needs to know; all the rest is B.S. to ensure an endless procession of appeals that is 'job security' for lawyers and judges. IMHO this crap has got to stop or another revolution is a certainty.
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Thank you for giving us this peek into your alternate universe. But here we deal with the real world. As I previously pointed out to you here:
Frank Ettin said:
Shootshellz said:
This quibbling over what constitutes a 'transfer' cracks me up. Two things to keep in mind. Number one: 'Laws repugnant to the Constitution are null and void' - Marbury v Madison. Number two: 'Shall not be infringed' - 2nd Amendment to the Constitution....
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What are you talking about?

In the real world the courts give deference to legislative acts and presume statutes valid and enforceable, until unconstitutionality is determined. As the Supreme Court said in Brown v. State of Maryland, 25 U.S. 419 (1827), at 437:
...It has been truly said, that the presumption is in favour of every legislative act, and that the whole burden of proof lies on him who denies its constitutionality....
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And much more recently in U.S. v Morrison, 529 U.S. 598 (2000):
...Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds. See United States v. Lopez, 514 U.S., at 568, 577_578 (Kennedy, J., concurring); United States v. Harris, 106 U.S., at 635. With this presumption of constitutionality in mind, we turn to the question whether §13981 falls within Congress' power under Article I, §8, of the Constitution....
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So in the real world a statute is valid and enforceable unless and until it is found invalid by a court having appropriate jurisdiction. You might think the law is unconstitutional, and therefore invalid, but no one cares. Your belief in the unconstitutionality or invalid of a law keeps no one out of jail, nor does it have any effect on the lives and property of real people in the real world.

The Founding Fathers assigned to the federal courts the authority to exercise the judicial power of the United States to decide, among other things, cases arising under the Constitution (Article III, Sections 1 and 2):
Section 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish....​

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution,...​
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The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute. Many of the Founding Fathers were lawyers and well understood what the exercise of judicial power meant and entailed.
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Yeah - it turns out law, like medicine, science, philosophy, religion, and politics, is complicated.
 
No surprise there.

I've been waiting for years for an Circuit Court of Appeals to recognize that strict scrutiny is the proper measure.
 
The next big trick (assuming we pull this one off) will be to get Circuit courts to apply intermediate scrutiny (when using the two-step test that I'm not so sure is a good idea to begin with) as opposed to applying rational basis and calling it intermediate scrutiny.
 
Bartholomew Roberts said:
The next big trick (assuming we pull this one off) will be to get Circuit courts to apply intermediate scrutiny (when using the two-step test that I'm not so sure is a good idea to begin with) as opposed to applying rational basis and calling it intermediate scrutiny.
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From your lips to God's ears, Bartholomew Roberts . . .

A Circuit split might get us to SCOTUS and I'd really, REALLY like for SCOTUS to settle the issue of which level of scrutiny (in favor of strict scrutiny, obviously).
 
Didn't Heller hold that the 2nd Amdt guarantees a fundamental individual right - unconnected to and unqualified by active participation in militia service - "to keep and bear arms"?

Previous SCOTUS rulings regarding which constitutional rights are considered "fundamental" have cited to those explicitly mentioned in the text of one or more of the various Amdts, like the First, Fourth, Fifth, Fourteenth, etc.

Much of the debate after that was whether those fundamental rights should then be made binding on state governments by being "incorporated" thru the due-process clause of the 14th Amdt ....

Those same precedents have also said that when some government action burdens/impedes/violates a "fundamental" right, whatever justification the government offers must pass a "strict scrutiny" review by the courts, not some lesser standard, like intermediate or "rational basis."

I can't think of any other textually explicit right, previously held by SCOTUS to be "fundamental," for which a government action being challenged as violating it was held subject to one of the weaker standards of review.

Can you name one? :scrutiny:
 
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Content-neutral free speech cases are evaluated under an intermediate scrutiny standard - though the standard of "intermediate scrutiny" used in those cases seems substantially tougher than what was applied by the District Court in this case.
 
Content-neutral free speech cases are evaluated under an intermediate scrutiny standard - though the standard of "intermediate scrutiny" used in those cases seems substantially tougher than what was applied by the District Court in this case.
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I believe the cases you're referring to are the "employment workplace" free-speech cases where the government is the employer.

If you're talking about the public forum cases, like protest marches in public places, although that form of "exercise" of free speech is subject to reasonable and non-discriminatory "time, place, and manner restrictions," the court's review of whether such restrictions are in fact reasonable, content-neutral, non-discriminatory, etc., is gauged under strict scrutiny.

In turn, to prevail, the government must demonstrate that it has a particularized "compelling interest" in enforcing that challenged policy, restriction, ordinance, statute, whatever, and that no legislative means less invasive or less burdensome on the right would achieve the same objective.

It also bears observing that legislative "bans" in the 2nd Amdt context bear a direct relation, legislatively, to "prior restraints" on speech and press in the 1st Amdt context, and such restraints on speech and press have always been subject to the strictest scrutiny.
 
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