What Standard Of Review Should The Court Use?

A number of other bloggers have discussed the Solicitor-General's brief in the DC suit that argues that the Supreme Court should apply not "strict scrutiny" but "intermediate scrutiny" to the question of whether the District of Columbia can ban residents from acquiring handguns. Snowflakes in Hell discusses why his initial upset is mellowing a bit. Right Side of the Rainbow says that it isn't as bad as some think. Say Uncle thinks this brief from the Solicitor-General is a truck sized hole through which more infringements on the right to keep and bear arms will come.

If you are scratching your head about what "strict scrutiny" and "intermediate scrutiny" mean--you are not alone. The courts have created a bunch of different standards of review for deciding whether a law violates your constitutional rights--and just to add to the confusion, almost all of what is below is specific to the Fourteenth Amendment's equal protection clause, since challenges to state laws are almost always because one class feels that it is being slighted by how a law is written or applied.

Strict scrutiny means that a law is constitutional if:

1. It is justified by a compelling governmental purpose (like public safety--but not making everyone love each other).

2. The law must be narrowly tailored to achieve that goal. It can't be overly broad, which means that the law takes away the rights of people that aren't the target of the compelling governmental purpose. For example, if the government passed a law designed to prevent the spread of STDs, it can't pass a law that bans everyone from having sex. At the same time, the law can't be underinclusive. If you pass a law designed to prevent the spread of STDs, it can't apply just to homosexuals, because that leaves heterosexuals free to spread STDs.

3. The law must achieve the compelling governmental interest by the least restrictive means. For example, there is a compelling governmental interest in preventing drunk driving. Prohibiting everyone from driving would certainly prevent drunk driving, but this is hardly the least restrictive means of accomplishing that goal.

If this seems like an extraordinarily demanding standard--especially that Goldilocks requirement that a law has to be not overly broad or underinclusive--yes, it is. If the Court applied this standard to every law, it seems likely that a great many laws would be struck down. While the famous saying, "Strict in theory, fatal in fact" turns out not to be true (read this paper by Adam Winkler from Vanderbilt Law Review, which shows that about 30% of laws reviewed under strict scrutiny are upheld), it is certainly the case that most gun control laws that upset gun owners would fail such a test. (Remember that there are a lot of gun control laws that aren't controversial: requiring serial numbers of guns; prohibiting convicted felons from possession; laws prohibiting sales of handguns to minors.)

The Court created the strict scrutiny standard in the 1960s, and uses it if a law relies on either "suspect classifications" (race, national origin, religion, or status as an alien) or because it burdens fundamental rights:

1. Denial or Dilution of the Vote
2. Interstate Migration
3. Access to the Courts
4. Other Rights Recognized as Fundamental

The right to have a gun for self-defense is obviously not a fundamental right to the courts yet--in spite of having its own amendment.

Just to add to the excitement, there are actually three different forms of strict scrutiny, explained in this UCLA Law Review article.

So, if most laws wouldn't survive strict scrutiny review, what standard do the court use, and why?

The next step down from strict scrutiny is intermediate scrutiny, "a regulation involves important governmental interests that are furthered by substantially related means." Examples of cases where this standard has been applied is classifications based on sex. In practice, this means that any law or regulation that classifies based on sex has a high standard to meet, although not as high a standard as strict scrutiny. If DC has to justify its gun control law under this standard, we can probably still win, but then it becomes a duel between various experts about whether the governmental interest--reduced crime--is actually furthered by their law or not.

The step down from intermediate scrutiny is rational basis review, which is perilously close to no review at all. There have been times when the Supreme Court has ruled that a law fails rational basis review. For example, the Supreme Court struck down a city zoning decision designed to prevent operation of a half-way house for the mentally retarded in Cleburne v. Cleburne Assisted Living Center (1985) because the Court decided that it was because of "irrational prejudice against the mentally retarded." Similarly, in Romer v. Evans (1996), the Supreme Court decided that the voters of Colorado were not competent to amend their state constitution. The voters, by initiative, amended the state constitution to prohibit the government from adding homosexuality to the list of protected statuses. The Supreme Court decided that the voters were engaging in irrational prejudice, and overruled them.

Where did this rational basis review come from? I happen to agree that the courts should not overturn a law unless there is a clear violation of the constitution. Otherwise, this is simply unelected judges substituting their opinions for that of elected legislators or the people--from whom all sovereignty flows in our republic. Rational basis review, as near as I can tell, is a response of liberals on the Court in the 1930s to the desire to let the Roosevelt Administration have its way with various New Deal schemes--a repudiation of Lochner v. New York (1905), in which the Court struck down a New York State law designed to limit the hours and working conditions under which bakers operated. Carolene Products v. U.S. (1938) seems to be among the earliest such repudiations of Lochner, and footnote 4 of Carolene Products is often cited as among the progenitors of the idea of strict scrutiny. It is interesting, however, to note that the footnote takes the position:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth.

If the Second Amendment is recognized as an individual right, this would suggest that strict scrutiny should apply to it.

Had liberals adopted this judicial restraint philosophy consistently, many other liberal causes would have suffered, such as desegregation, making obscenity readily available, making abortion legal everywhere, and striking down laws that promoted traditional sexual morality.

That UCLA Law Review article I mentioned earlier points out that the history of strict scrutiny is recent, is not derived from the Constitution, and is so vague that it doesn't get applied with as much consistency as a rule of law should be. It seems clear to me that strict scrutiny is a liberal device for privileging rights that they care about more than rights that they don't care about. If the Court would dismantle strict scrutiny, I would be okay with intermediate scrutiny for the Second Amendment. But if they are not going to dismantle strict scrutiny, they need to recognize that the right of the people to keep and bear arms is a fundamental human right, and deserving of the strict scrutiny standard of review.

UPDATE: John Lott has a piece up at National Review about this as well.