Intermediate scrutiny is the new rational basis

At least in the Fourth Circuit.

The Fourth Circuit Court of Appeals’ decision reversed the district court’s decision in Woollard v. Sheridan (which had invalidated the Maryland concealed carry statute’s requirement that an applicant show good cause for issuance of a concealed carry license).

The court quoted legislative “findings” supporting the law as written:

(1) the number of violent crimes committed in the State has increased alarmingly in recent years;

(2) a high percentage of violent crimes committed in the State involves the use of handguns;

(3) the result is a substantial increase in the number of deaths and injuries largely traceable to the carrying of handguns in public places by criminals;

(4) current law has not been effective in curbing the more frequent use of handguns in committing crime; and

(5) additional regulations on the wearing, carrying, and transporting of handguns are necessary to preserve the peace and tranquility of the State and to protect the rights and liberties of the public.

The court even notes that these findings (adopted in 2002), have not been substantially changed since the Maryland legislature first adopted them in 1972.

Somehow, despite the passage of 30 years from the legislature’s initial adoption to its re-adoption of these findings, the situation in Maryland has not changed (after all, if it had worked, and crime had gone down in response to any laws based on these findings, surely the present findings would differ by at least crediting the current harsh laws for the drop in crime). This is in fact strikingly similar to the Supreme Court’s current case on the Voting Rights Act, in which Congress had adopted the same “findings” today as it did at the VRA’s inception–in 1965.

The Fourth Circuit went on to list several other “findings” (I won’t reproduce them here; if you click through to the Volokh Conspiracy and then to the opinion itself, you can read them on pp. 26-28). This reads like a litany of standard gun control fears–essentially that liberalized carry will take us back to the wild west. It hasn’t (for example, despite similar claims by opponents of Virginia’s bar and restaurant carry bill, crime didn’t increase–it dropped).

Maryland essentially argued that they should be able to deny carry licenses to the vast majority of applicants because of public safety, and the Fourth Circuit went along with it (citing heavily to the Second Circuit’s opinion in Kachalsky, but doing its best to minimize the Seventh Circuit’s opinion in Moore).

Professor Volokh appears to take a dim view of the court’s deference to the legislature’s findings (especially coupled with this standard of review) and notes that “a constitutional right that can be trumped in nearly all its applications, under whatever level of scrutiny, is not really a right.”

I agree.

I would go further, though. The various circuits, in Kachalsky, Peterson, and now in Woollard are focusing too much on Heller and McDonald‘s language regarding the “core” Second Amendment right. The right of armed self-defense may be strongest in the home, but as the Seventh Circuit noted in Moore, that does not mean that it is nonexistent elsewhere. 

I only have one other thing to say about this case–I’m very glad it came out today and not last Thursday, or I would have had to stay up all night reworking certain parts of my law review note so I could turn it in on Friday.

Quote of the Indeterminate Time Interval – Wikipedia

Apropos of David Gregory’s violation of Washington, D.C.’s  strict liability standard capacity magazine ban, and the D.C. attorney general’s decision to forego prosecution:

Historically, selective enforcement is recognized as a sign of tyranny, and an abuse of power, because it violates rule of law, allowing men to apply justice only when they choose. Aside from this being inherently unjust, it almost inevitably must lead to favoritism and extortion, with those empowered to choose being able to help their friends, take bribes, and threaten those from they desire favors.

Of course, if you’re not David Gregory, and don’t have David Gregory’s connections, the D.C. attorney general is not nearly so understanding.

image via Patriot Outfitters

Tens–likely hundreds–of millions of such magazines are lawfully possessed in the United States by law-abiding gun owners. More than 1 million PMAGs are backordered from Magpul. Brownells sold through three-and-a-half years worth of magazines in three days.

Magazines like the one Gregory displayed on Meet the Press, and Magpul’s PMAG, are not complicated; they are made up of a box and a spring. Given the sheer number of standard capacity magazines in the United States, and the infrequency of mass shootings (they are not becoming more common, and your chances of being killed in a mass shooting are about the same as your chances of being struck by lightning), these magazines, as well as the AR-15 rifle (and all semi-automatic weapons) are in common use for lawful purposes.

If in common use is to mean anything at all, it must cover the AR-15–America’s most popular rifle–and standard capacity magazines.

 

Congrats to North Carolina

On having their ban on carry during declared states of emergency struck down in federal court as unconstitutional.

The Fourth Circuit judge applied strict scrutiny and found that the law excessively burdened law-abiding people who chose to exercise their Second Amendment rights.

I had completely forgotten about it since I posted in June of 2010 about North Carolina’s gun laws being the next target in Alan Gura’s genius master plan.

I look forward to his next victory with great anticipation.

Repeal the First Amendment!

A Draft Amendment Resolution, and Subsequent Legislation:

Phase 1: The Amendment Resolution

JOINT RESOLUTION

Proposing an amendment to the Constitution of the United States repealing the right to freedom of speech, assembly, the press, and to petition for redress of grievances.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid for all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States at any time after the date of its submission for ratification:

‘Article–

1. Any right to freedom of religion, the press, assembly, speech, or to petition for redress of grievances, whether under the First Amendment to this Constitution, or under some pre-existing doctrine of natural law or common law or otherwise, or under Constitution or laws of any State, is repealed.

2. The privileges to worship, assemble, speak, and petition for redress of greivances throughout the United States shall be under such Regulations as the Congress shall make.’

Phase 2: Legislation

Public worship, assembly in groups of more than an immediate family for worship, and proselytizing shall be unlawful, except with express written permission from the Department for Religious Equality.

Any religious tract or text is subject to a tax equal to 20% of its wholesale price, paid by the manufacturer; sale of such tract or text without the qualifying stamp shall be unlawful. The Department for Religious Equality shall process such tax stamps in a timely manner upon receipt of the necessary forms.

All journalists, reporters, columnists, authors, writers, bloggers, tweeters, and users of other such social media, internet communications, and mass communications technology shall be licensed with the Department of Speech; failure to register within 365 days of this act’s passage shall be unlawful.

Gatherings of groups larger than one’s immediate family, except for activities expressly approved by the various Departments, including the Department of Grievances, shall be unlawful; the Department of Grievances shall allow protests of policies, laws, and persons after appropriate screening and consideration.

Inspired by Mike Barkley, Candidate for Congress (H/T Linoge, Sebastian, Weerd, and Joe).