Shotgun News, June 1, 2008, pp. 22-24
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Standards of Review
Last month I told you why I expected a victory in the U.S. Supreme Court as a result of the D.C. v. Heller (2008) case. I also warned you that the devil in the details may be the “standard of review” that the Court adopts for challenges to laws that violate the Second Amendment. And, you ask, what is a “standard of review”?
Many people, based on what they learned in American Government class in high school, assume that judges are required to strike down any law that is contrary to the text of the Constitution or its amendments. Especially in the early years of our Republic, there were plenty of judges who had that same, simple understanding of the Constitution. As the Georgia Supreme Court expressed it, striking down a law that banned the sale or carrying of concealable handguns in 1846 for being contrary to the Second Amendment: “The provision is general in its nature and unrestricted in its terms; and the sixth article of the Constitution declares, that the constitution shall be the supreme law of the land, and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary not withstanding.”
Today, our legal system is far more sophisticated than that. Now, when someone challenges the constitutionality of a law, the courts do not ask, “Is this an area where the Constitution prohibits the government from acting?” Instead, they ask, “Is this an area where the Constitution limits the government’s authority? If so, how do we balance a legitimate governmental purpose with the rights that the Constitution protects?” (In the case of some federal judges, the thought process is more like, “Oh dear. What excuse shall I come up with this time to tell the peasants to put down their pitchforks and torches and leave the castle alone?”)
Now, at this point, I was going to write you a short history of how we went from that “categorical” standard of review to the system that we have now, but as I started writing it, I realized that it would either bore you silly, or worse, encourage you to pull out your pitchforks, light the torches, and start looking for your nearest law school. So I will just tell you what the standards of review are.
At the bottom of the list is “rational basis” review. Is there a rational connection between the law that the legislature has passed, and some legitimate governmental purpose? If a state legislature required everyone to wear light blue in public, this would fail the “rational basis” test, because there is no legitimate governmental purpose to such a law.
I can agree with some of the cases in which the Court has decided that there was no rational basis for the law, such as the Oregon law that prohibited Catholic private schools. There was no rational connection between a legitimate governmental interest, and the law; the KKK was temporarily quite strong in Oregon, and the purpose was to drive Catholics out of the state.
City of Cleburne v. Cleburne Living Center (1985) is another such case. A city zoning ordinance that prohibited a group home for the mentally retarded had no basis in any legitimate governmental purpose; the neighbors simply didn’t want this rather depressing situation in the neighborhood.
In other cases, I am quite sure that there was a rational basis for the law, which the Court simply refused to admit. A Nebraska law that prohibited teaching modern foreign languages to children below eighth grade, in my estimation, was an attempt to get all immigrant children speaking English, not their parents’ tongue. It could probably be defended as necessary to create a cohesive American society.
Most recently, and certainly most arrogantly, the Court struck down an amendment to the Colorado Constitution passed by the voters that prohibited adding sexual orientation to antidiscrimination statutes. The Court decided that the voters of the entire state of Colorado lacked a rational basis for their decision because it lacked a “rational relation to some independent and legitimate legislative end” and that it was “born of animosity toward the class that it affects.” The Court concluded that the people of Colorado were simply bigots. When a majority of the nine judges on the Court decides that it better knows what is “rational” than a majority of millions of voters—that takes your breath away.
Next up is what the Court calls “heightened scrutiny” or “intermediate scrutiny.” In many of these cases, the Court has ruled that a law that violates the equal protection clause of the Fourteenth Amendment can still be upheld, but it “must serve important governmental objectives and must be substantially related to achievement of those objectives.” In the first such case, the law set a different age limit for males and females for purchasing 3.2% alcohol content beer. In several cases, the Court has recognized that there can be legitimate governmental interests in distinguishing between men and women.
The highest standard of review is “strict scrutiny.” For a law that interferes with a Constitutional right to survive this standard, it must meet three tests:
1. There must be a compelling governmental interest. Not: this would make everyone happy, but something that is generally recognized as a necessary governmental function—like public safety.
2. The law must be narrowly tailored to achieve that end. The law should affect only those who are the problem—but not those who are not a problem. Think of this as the Goldilocks problem. The law’s target can’t be too broad, and can’t be too narrow. If you write a law that affects people who aren’t the problem you are trying to fix, then the Court says, “Overbroad. Struck down.” If you then rewrite the law narrowly, so that it only gets some of the people that you are trying to punish, then the Court says, “Underinclusive. Struck down.” Not surprisingly, it only takes a few times through this process before legislatures decide not to keep fighting the courts.
3. The law must use the “least restrictive means” to achieve that end. If there are two different ways of satisfying a compelling governmental interest, the law better have picked the method that puts the least restraint on whoever needs restraining.
If reading this list of tests makes you think that strict scrutiny is just an excuse for the Court to strike down any law it doesn’t like—you are in good company. For many years, law professors taught their students, “strict in theory, fatal in fact.” This meant that if the courts decided that a law should be reviewed under this standard, it was almost certain to be found unconstitutional. Professor Adam Winkler has recently published a paper that demonstrates that, surprisingly enough, this doesn’t turn out to be true. Large numbers of laws reviewed under strict scrutiny are found constitutional by the courts.
When the District of Columbia tried to defend its law before the Supreme Court, it had to make three different arguments:
A source of considerable heartburn to our side earlier this year was that the Solicitor General, who argues on behalf of the federal government before the Supreme Court, filed an amicus brief in which they claimed that while the Second Amendment protects an individual right, the Court should use the intermediate scrutiny standard of review.
Based on the oral arguments, I have confidence that the Court is going to decide that the Second Amendment does protect an individual right to possess handguns in one’s home for self-defense. But what standard of review will they use?
If they adopt rational basis, then we are in a pile of hurt. Rational basis essentially means that if you can articulate some rational connection between what D.C. banned—handguns—and a legitimate governmental interest—reducing violent crime—then they get to keep their law. At best, rational basis might allow us to successfully overturn laws aimed at guns that are seldom misused. Rational basis doesn’t even require that those making the argument have any evidence that they are right. It merely has to sound like there could be a connection. Based on the oral arguments, I don’t think the Court is going to adopt rational basis, which has historically been limited to economic regulations.
If the Court adopts “heightened” or “intermediate scrutiny,” then there are two possible actions. The Court might simply rule that the evidence presented by both sides demonstrates that the D.C. handgun ban was a complete failure at achieving its legitimate governmental end—because it clearly failed to reduce violent crime, and arguably made the problem worse. I think this is a high probability result.
The Court might also decide that there wasn’t enough expert opinion thrown at the problem—and order the case to go back to the district court again to be tried once more. This isn’t very likely. Even if it happened, the evidence is strong that we would almost certainly win. The difficulty, however, is that the case might again go to the Supreme Court—and by then, President Obama or President Clinton might have appointed one or two new justices. Let’s just say that I don’t expect that their appointments will be pro-gun.
If the Court adopts “strict scrutiny,” then the D.C. law dies. More importantly, many of the current gun control laws will get a thorough examination in subsequent years. The federal law prohibiting convicted felons from possessing firearms? I suspect that it might require revision to apply only to violent felons. Non-violent felons (such as those who have reset a vehicle odometer) might argue that the current felon in possession ban is overbroad. Once we get the Court to incorporate the Second Amendment against the states through the Fourteenth Amendment, lots of the more outrageous laws will be in serious danger.
I think that the Court applying strict scrutiny to the Second Amendment is a strong possibility. Why? Because the Second Amendment is an explicitly protected right—and because the earliest ancestor of “strict scrutiny” explicitly listed the protections of the Bill of Rights as requiring this high standard. In addition, the Court has applied strict scrutiny to rights that are, to be charitable, more implied than explicit. For example, the Court has found that strict scrutiny applies to the right of an extended family to live in the same dwelling, and to the right to collect welfare without waiting one year to become a resident of that state.
There is a fourth possibility—that the Court might rule that this is a categorical right—that “shall not be infringed” really does mean what it says. Before the oral arguments, I would have considered this so unlikely as to be not worth mentioning. Such a categorical right would throw many current gun control laws into uncertainty and chaos—including laws that even most gun rights activists find acceptable, such as the felon in possession rule. But during the oral arguments, Chief Justice Roberts really startled me when he observed that all of these standards of review: “none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time… and determine how these -- how this restriction and the scope of this right looks in relation to those?
”I'm not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don't know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?”
Roberts isn’t arguing for a categorical protection here—in some sense, he is arguing for the opposite—make a decision about this particular law, and don’t try to come up with an all encompassing rule. But I do find myself wondering if Roberts’ willingness to admit that this whole standards of review mishmash is ahistorical, and not based on the Constitution, might lead us to something even more dramatic than we had ever hoped.
 Nunn v. State, 1 Ga. 243, 250 (1846).
 Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925).
 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).
 Meyer v. Nebraska, 262 U.S. 390, 403 (1923).
 Romer v. Evans, 517 U.S. 620 (1996).
 Craig v. Boren, 429 U.S. 190, 198 (1976).
 Adam Winkler, “Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts,” Vanderbilt Law Review, Vol. 59:793-871, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=897360, last accessed April 14, 2008.
 U.S. v. Carolene Products, 304 U.S. 144, 152 n. 4 (1938).
 Moore v. East Cleveland, 431 U.S. 494, 502 (1977).
 Shapiro v. Thompson, 394 U.S. 618 (1969).
 Oral Arguments Transcript, D.C. v. Heller, 07-290, 44, http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-290.pdf, last accessed April 14, 2008.