Scott D. Cosenza

Scott D. Cosenza, Esq. writes extensively on legal issues and is the Policy Director for One Generation Away.

gun control

On February 23, the Fourth Circuit Court of Appeals issued a ruling allowing Maryland’s ‘assault weapons’ ban. The court decided the ban did not violate rights guaranteed by the second amendment rights, or at least not one that is impermissible under the Heller Case.

Maryland enacted its Firearms Safety Act in 2013 banning the sale of forty-five named firearms, along with scores of others, by design characteristics.  Among additional restrictions, the Act prohibits any transfer of a magazine that holds more than ten rounds and requires handguns purchasers to obtain a state license before any transfers. To obtain a license, purchasers must undergo both fingerprinting and mandated training.

These limitations upon the right to keep and bear arms were the most restrictive statewide burdens yet enacted since the 2008 District of Columbia v. Heller decisionHeller was seen as a landmark victory for gun rights proponents because for the first time ever the United States Supreme Court clearly stated that the second amendment guaranteed Americans an individual right to own guns, including handguns.  Until then gun control proponents argued that the second amendment conferred no individual right and applied only to state militias.

When the Heller decision was released, gun rights proponents rallied enthusiastically, while lawyers who support gun rights remarked on how much litigation was yet to come.  Why would a new court decision pave the way for more, rather than less, litigation over regulation of guns? Because there is no bright line rule expressed in Heller.  That is what has led us to this decision from the Fourth Circuit, and why this lawyer predicts the Supreme Court will be forced to complete the job it undertook in Heller by providing clear guidance regarding what firearm restrictions the Constitution permits legislators to burden us with.

The Supreme Court permits the government to violate our rights all the time.   Over its history, the court invented for itself a series of tests to review government actions.  There is a three-tier system of review whereby the court itself decides which standard to apply and then determines the result based on that application.  The review tiers are:

  • Strict Scrutiny – the highest level, and applied if a challenged law implicates a fundamental right such as free speech, or that a law may discriminate on the basis of race, religion, etc.  To pass muster under this standard, the government must show there is a compelling state interest behind the challenged policy, and that the law or regulation is narrowly tailored to achieve its result.  Laws tested under this standard are often stricken down.
  • Intermediate Scrutiny – this mid-level of review requires the government show that laws examined under its standard to serve an important government objective, and be substantially related to achieving the objective.
  • Rational Basis – this lowest level of scrutiny requires those challenging the law to prove that government has no legitimate interest in the law or policy; or that there is no reasonable, rational link between that interest and the challenged law. In practice, this means that laws reviewed under the Rational Basis standard are almost never overturned.

The Heller decision did not state which standard the court would apply to gun control legislation because the law challenged in Heller, the complete prohibition Washington D.C. enacted on handguns at home failed all tests for permissibility.  The court’s opinion stated, “[u]nder any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster.”

 While that was sufficient analysis to resolve the matter disputed in Heller, it unfortunately left insufficient guidance for lower courts to address the many gun control measures in place and added by all manner of government bodies going forward.  In this case, the Fourth Circuit held that intermediate scrutiny was the appropriate test and that the legislation survived that burden.

We’re going to have to wait until the Supreme Court once again weighs in and gives instructions for the circuit courts to follow, to achieve a consistent nationwide standard of what rights and protections are guaranteed by the second amendment.  The fate of many, if not most, gun control laws hang in the balance.