Kolbe Vs. Hogan: Will The Correct Standard Of Review in a 2A Case Please Stand Up!

By Roger J. Katz, Attorney at Law and Stephen L. D’Andrilli ~ Part 3

Second Amendment Courts Judges Strict Scrutiny
Kolbe Vs. Hogan: Will The Correct Standard Of Review in a 2A Case Please Stand Up!
Arbalest Quarrel
Arbalest Quarrel

New York, NY  -(Ammoland.com)-  The U.S. Supreme Court, in the case, District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008), wrestled with the legal test to be applied when determining if a law, impacting the Second Amendment, would pass Constitutional muster.

The U.S. Supreme Court has, through time, in its great body of case law, developed three salient standards of review, or tests, one of the three which a court of competent jurisdiction must apply when testing the constitutionality of government action.

But which test a court must apply to test the constitutionality of a particular government action depends on the nature and importance of the right protected, the extent to which a government—local, State, or federal—infringes that right, and the class of persons impacted by that governmental action.

Apart from the high Court’s three seminal holdings on the Second Amendment in Heller, the Heller case is notable for explicating problems associated with any of the standard tests previously employed—and with problems associated with a new one that the dissenting Justice, Stephen Breyer, would like to have applied—when government enacts a law directly impinging on and infringing the very core of the Second Amendment. The late Justice, Antonin Scalia, writing for the majority in Heller, discussed the problems of each of these standard tests, concluding that none of the traditional tests, including the balancing of interests test proposed by Justice Breyer, are adequate to protect the core of the Second Amendment, when a government deliberately, unabashedly attacks the very core of it.

Justice Scalia began by pointing out that the weakest standard of judicial scrutiny, “rational basis,” should never be used to test the constitutionality of legislation, that, on its face, is directed against the exercise of a fundamental right, especially when legislation negatively impacts the Second Amendment. “Rational basis” is an unacceptable standard to be used because, if it is used, a governmental entity—be that a local, State, or Federal governmental entity—need only demonstrate that the governmental legislation is rationally related to a legitimate government purpose. Where the Second Amendment is impacted, this generally means that a governmental entity need only demonstrate that the governmental action is rationally related to a legitimate goal such as promoting public safety in order for that governmental entity to successfully defend against a challenge to the constitutionality of the governmental action.

Justice Antonin Scalia
Justice Antonin Scalia points out clearly, categorically the inappropriateness of rational basis in testing the constitutionality of legislation negatively impacting the Second Amendment.

Rational basis, as a standard of review, to test the constitutionality of governmental action, where, as here, the Second Amendment is negatively impacted, is categorically inappropriate. Even the left-wing Justice, Stephen Breyer, agreed. As Justice Scalia stated, in Heller, “Justice Breyer correctly notes that this law [Maryland’s Firearm Safety Act] like almost all laws, would pass rational-basis scrutiny. [citation omitted].

But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. [citation omitted]. In those cases, ‘rational basis’ is not just the standard of scrutiny, but the very substance of the constitutional guarantee.”

Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms [citation omitted].” District of Columbia vs. Heller, 554 U.S. 570, 628, fn.27.

Justice Scalia points out clearly, categorically the inappropriateness of rational basis in testing the constitutionality of legislation negatively impacting the Second Amendment. For a Court using that lax standard could easily find that laws that unconstitutionally impinge on and infringe fundamental rights would, nonetheless, pass judicial scrutiny every time unless the governmental action is determined, by a court of competent jurisdiction, to be arbitrary and capricious—a notoriously difficult burden for a challenger to overcome, and something which a Court very rarely finds in governmental actions.

On Second Amendment matters, where public safety is always asserted as the, or certainly a, salient reason for restrictive gun legislation, it is highly unlikely that a Court of competent jurisdiction would ever find any restrictive gun legislation—even an absolute gun restriction—to be arbitrary and capricious when public safety is asserted as at least one of the primary bases for the legislation. Of course, drafters of restrictive gun legislation, and the mainstream media that always trumpets such legislation, invariably assert “public safety” as the salient, predicate basis for enacting such legislation in the first place. Courts rarely, if ever, look beyond and behind the assertion to determine whether “public safety” is truly the basis for restrictive gun legislation and not simply a makeweight employed for the specific purpose of defeating any challenge made to it.

Thus, a challenger—who, under rational basis, always bears the burden of proof, at the get-go, to demonstrate that a particular government action is unconstitutional—would have a very difficult time, demonstrating, to the satisfaction of a court of review, that such restrictive legislation is, under law, unconstitutional. This means, of course, that, under rational basis, any infringement of an American’s fundamental right to keep and bear arms always passes constitutional muster. This isn’t an academic consideration. For New York Courts routinely use rational basis as a standard of review and have found, not unsurprisingly, the New York Safe Act—one of the most restrictive and notorious gun enactments in the Nation, that clearly, negatively impacts the core of the Second Amendment—to pass constitutional muster.

But, would application of the highest standard of review, strict scrutiny, defeat restrictive gun legislation that hides behind the cloak of promoting public safety? Justice Scalia didn’t think so, notwithstanding the import of such heightened scrutiny.

What Does Judicial Review Under Strict Scrutiny Mean?

What does review of legislation, under “strict scrutiny,” entail? Under strict scrutiny, a governmental body must show, one, that legislation impinging upon and infringing upon a constitutional right, must serve a “compelling governmental interest” and, two, that the law that ostensibly serves a compelling governmental interest, is, in fact, the least restrictive means government has available to it for achieving its stated goal.

Such a test, properly used, would, one might reasonably think, preclude implementation of–or if implemented, would require a Court to strike down–devious antigun legislation, designed primarily to curtail the legitimate right of gun owners to own and possess firearms by unconstitutionally, and, therefore, unlawfully, divesting them of that right. For, the mere and obviously false and ridiculous assertion by government that restrictive gun legislation is not designed to divest gun owners of their guns–as government doesn’t really wish to deny average law-abiding, rational Americans their right to own and possess firearms–but is designed merely to promote public safety–will not, by itself, satisfy strict scrutiny.

The mere trivial claim of government–adequate to satisfy rational basis–is not enough to satisfy strict scrutiny. Such legislation would, it is reasoned, fail such severe judicial scrutiny, time and time again. That, of course, is what application of strict scrutiny is designed to do. But that is not always what happens–especially where legislation impinging on and infringing the right of the people to keep and bear arms exists. Justice Scalia knew this. He wasn’t fooled by the promise that strict scrutiny sought to engender. Justice Scalia saw the fallibility in the test of strict scrutiny—in any test or standard, really, that a Court may be called upon to employ when testing the constitutionality of restrictive gun legislation—even the test of strict scrutiny as applied to test the constitutionality of governmental enactments.

Justice Scalia reasoned, in the Heller opinion, that, if the Courts use the most stringent standard, strict scrutiny, then government action, negatively impacting the right of the people to keep and bear arms—a fundamental right as codified under the Second Amendment—could still feasibly pass Constitutional muster.

He said in Heller, “Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to keep and use for protection of one’s home and family,’” [citation omitted] would fail constitutional muster. District of Columbia vs. Heller, 554 U.S. 570, 628, fn.27.

Academicians concur. One legal scholar writes, “Strict scrutiny must be worthy of its name; ‘strict’ should be truly ‘strict,’ not merely ‘significant.’ It should take more than a good college try to satisfy strict scrutiny. Otherwise aspects of liberty encapsulated in fundamental rights will lack the vigor the Supreme Law of the Land should command in a free society. That is why strict scrutiny is ‘the most demanding test known to constitutional law.’” “Making Second Amendment Law with First Amendment Rules: The Five-Tier Free Speech Framework and Public Forum Doctrine in Second Amendment Jurisprudence, Kenneth A. Klukowski, University of Notre Dame Law School, J.D., 93 Nebraska Law Review 429, 444 (2014). The author says, unabashedly, that the courts have “emasculated strict scrutiny.”

Certainly, Justice Scalia was aware of this “emasculation” of the strict scrutiny test. It was for this reason that he was skeptical of asserting a standard of review for Second Amendment cases at all. Justice Scalia knew that many courts, federal and State, frown on the very existence of the Second Amendment. Given the chance, judges that despise the Second Amendment would find a restrictive gun law constitutional using any articulated standard of review. Justice Scalia also obviously knew that, to enhance the effectiveness of Heller, it was necessary to make clear to courts of inquiry that outright bans on entire categories of guns that the public has traditionally and commonly used for self-defense are per se unconstitutional.

“There are situations in which even strict scrutiny proves insufficient to vindicate constitutional rights. Those are (1) categorical bans on firearms, and (2) firearm confiscations. . . . Per se rulings will . . . take off the table certain questions wherein courts are giving short shrift to the Second Amendment. The Second and Fourth Circuits have held that near-absolute bans on carrying firearms outside the home are constitutional, applying a faux intermediate scrutiny that more resembles rational-basis review.” “Making Second Amendment Law with First Amendment Rules: The Five-Tier Free Speech Framework and Public Forum Doctrine in Second Amendment Jurisprudence, 93 Nebraska Law Review at 446-447.

What Standard Of Review Did The U.S. District Court Of Maryland Use In Deciding Kolbe?

But, what did the U.S. District Court of the District of Maryland, in Kolbe vs. O’Malley, 42 F. Supp. 3d 768; 2014 U.S. Dist. LEXIS 110976 (D. Md. 2014), do? The lower Court didn’t apply strict scrutiny, nor did it apply rational basis. The U.S. District Court applied another standard of review—intermediate scrutiny, and, having done, the Court, held, not surprisingly, that facially unconstitutional legislation nonetheless passes judicial inquiry into the constitutionality of that legislation–namely, that the Maryland Firearm Safety Act is lawful and consistent with the Second Amendment right of the people to keep and bear arms.

Under “intermediate scrutiny,” a standard of review created by the U.S. Supreme Court, that ostensibly falls between the very lax “rational basis” standard and the seemingly strong “strict scrutiny” standard, a Court, using the intermediate scrutiny test, commences by asking whether legislation is rationally related to a legitimate government goal. That of course is the rational basis test; and, under that test, if the government action meets that liberal test, as it almost invariably does, the Court must need go no further in determining the constitutionality of the government action. But, rational basis is only the first step when a Court employs intermediate scrutiny. The Court then proceeds to the next step, and asks whether the legislation is substantially related to the governmental interest in achieving that goal.

How did intermediate scrutiny come to pass? Originally, intermediate scrutiny was devised by the U.S. Supreme Court for use in gender discrimination cases. Intermediate scrutiny, though, has increasingly been used by Courts, in lieu of the heightened strict scrutiny, in cases where fundamental rights are at stake—most notably under the First and Second Amendments.

Antigun Courts that are generally restrained from using rational basis—apart from the Courts of New York that have systematically gotten away with use of this altogether inapt standard of review—the standard of review of choice of these antigun Courts, tasked with ruling on the constitutionality of a government action that negatively impacts the Second Amendment, is intermediate scrutiny.

But there is a problem with this standard of review. The problem with “intermediate scrutiny” is that it is difficult to get a handle on it. What does “substantially related” mean? It means different things to different Courts.

Understand, if, as Justice Scalia pointed out in Heller, strict scrutiny is not an appropriate test to be used in testing the constitutionality of government action that infringes the core of the Second Amendment, intermediate scrutiny, as with the lax test, rational basis, is clearly not the appropriate test for a Court to use either. The U.S. District Court of Maryland used the test of intermediate scrutiny, anyway.

Maryland’s Firearm Safety Act, operating as a total ban on an entire category of firearms that the law-abiding citizenry traditionally and commonly uses for self-defense—namely, those firearms the State arbitrarily defines as “copycat weapons” or “assault weapons” or “military style weapons” and ammunition magazines classified as “LCM” (Large Capacity Magazines)” commonly used for those weapons—passes constitutional muster on a standard of review the U.S. District Court for the District of Maryland decided to use—a standard of review to test the constitutionality of the Maryland Firearm Safety Act that the Heller majority discussed—along with rational basis and strict scrutiny—and summarily rejected.

Why did the U.S. District Court of Maryland use a standard of review in clear contravention to Heller in testing the constitutionality of the Maryland Firearm Safety Act—that so blatantly infringes the right of the people to keep and bear arms? What was the U.S. District Court of Maryland thinking? Did the U.S. District Court of Maryland really believe that it could so easily snub the U.S. Supreme Court? What was the District Court’s reasoning? What was the reasoning of the U.S. District Court? We deal with these questions in Part Four of this multipart series on Kolbe.

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Jim Macklin

If you went to a doctor because of a broken left leg and the doctor broke your right leg to match you’d bring a suit against the doctor and the hospital where such a clearly wrong diagnoses and treatment was applied. Yet, for over 100 years “gun control” has been proposed and passed as a cure for violent crime and reduction of “gun crimes” despite the fact that after every such “rational” application of gun control gun crimes have increased. But citizens are denied their constitutional rights and the right to sue for damaged the quake politicians who propose these… Read more »


STRICT SCRUTINY is only one acceptable if I’m the defendant or complainant!


But what gets me is that no one talks about the real issue, which is “Subject Matter Jurisdiction.” This means that no court has the jurisdiction to decide cases where there was granted to judicial review.


Sorry, never granted the suject matter jurisdiction to review any cases. If they applied the law correctly, any case brought against a citizen for weapons, should be refused a hearing all the way to the city level.


In the heller or McDonald case, not sure which, SCOTUS said that the 2nd had almost the same protections and standard of review as the 1st.