By Roger J. Katz, Attorney at Law and Stephen L. D'Andrilli ~ Part 4
New York, NY -(Ammoland.com)- The Maryland District Court incorrectly and improperly interpreted Justice Scalia as saying:
“the Supreme Court held in Heller I* that a heightened level of scrutiny applies to regulations found to burden the Second Amendment right, 554 U.S. at 628 n.27, but did not further articulate whether and when strict or intermediate scrutiny applies.”
Kolbe vs. O’Malley, 42 F. Supp. 3d 768, 789 (U.S. Dist. Ct. Md. 2014), affirmed in part, vacated in part, and remanded to the District Court by the three Judge Panel in Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. Md., 2016).
It was not by accident that the high Court in Heller refrained from articulating when intermediate scrutiny or strict scrutiny, as a legal standard, applies to test the constitutionality of legislation impinging on the Second Amendment.
The Heller Court deliberately refrained from doing so.
The high Court intentionally refrained from articulating any standard of review—whether rational basis, intermediate scrutiny, strict scrutiny, some hybrid standard, or a completely new and novel standard of review, such as the one Justice Breyer devised for Heller, in his dissenting opinion—because Justice Scalia, who wrote the majority’s opinion, knew that any standard a lower court or the U.S. Supreme Court utilized to test the constitutionality of legislation, impinging upon and directly infringing the right of the people to keep and bear arms, would likely fail if a lower Court—antithetical to the very existence of the Second Amendment—wished to uphold an unconstitutional law. The decision and reasoning of the U.S. District Court of Maryland in Kolbe vs. O’Malley demonstrably bears out Justice Scalia’s concern.
Justice Scalia knew full well a lower Court would foreordain the result it wanted, through any standard of review the high Court might articulate. Thus, a lower Court could cloak a wrongly decided case by simply pointing to the standard the high Court happens to tell a lower Court to use, and, in so “applying” that standard, uphold a facially unconstitutional law, finding the law to be perfectly valid and, hence, lawful, when in fact it isn’t.
Justice Scalia apparently felt confident that, by refusing to articulate a standard of review for testing the constitutionality of a government action that directly impinges and infringes the core of the Second Amendment, a lower Court will draw the right conclusion and strike down such government action—even if a lower Court does so reluctantly because it happens to harbor animosity toward the Second Amendment. But, Justice Scalia did not, apparently, realize the lengths to which a lower Court would go to defend governmental actions directed to the core of the Second Amendment even if such Courts flirt with injudicious defiance of clear U.S. Supreme Court precedent.
The District Court of Maryland extrapolated from a totally erroneous interpretation of Heller, relying on exposition from an earlier Fourth Circuit case that reflects law decidedly and decisively overridden by Heller.
The District Court of Maryland said, “From the Court’s holding in Heller I, the Fourth Circuit has subsequently determined that whether strict or intermediate scrutiny applies requires the court to consider ‘the nature of the person’s Second Amendment interest, the extent to which those interests are burdened by government regulation, and the strength of the government’s justifications for the regulation.’” Kolbe vs. O’Malley, 42 F. Supp. 3d at 789, relying for support on United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011).
The District Court’s understanding of Heller is flat-out wrong. The District Court points for support, for its reasoning and for its decision, to parenthetical material, dicta, appearing in Heller. Dicta, though, does not constitute the salient ruling of the high Court—hence the reason that such material appears in a footnote and not in the body of the high Court’s opinion.
In that footnote to the Heller Opinion, Justice Scalia was doing nothing more than responding to Justice Breyer’s comment—a comment that appeared in Justice Breyer’s dissenting opinion. Justice Scalia was simply agreeing with Breyer that rational basis—the lowest standard of review to test the constitutionality of government action—is never an appropriate standard when that government action directly and clearly and fatally impinges on and infringes an enumerated right, such as the Second Amendment.
What Justice Scalia said in “fn27,” which the District Court refers to, and as we pointed out in Part Three of this series, and which bears repeating is this:
“Justice Breyer correctly notes that this law, 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. See United States v. Carolene Products Co., 304 U.S. 144, 152, n 4, 58 S. Ct. 778, 82 L. Ed. 1234 (1938) (‘There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments. . . .’ If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.”
From these remarks the U.S. District Court for the District of Maryland felt justified, nonetheless, to apply some standard of review—when the Heller majority did not warrant use of any standard of review to test the constitutionality of governmental action that impinges on and infringes the very core of the Second Amendment. Justice Scalia, writing for the majority in Heller, made abundantly clear that all standards of review are inadequate when the core of the Second Amendment is attacked.
Justice Scalia therefore refused to be pinned down to elucidating a test to be used by the courts when analyzing whether a given law that operates to ban an entire category of weapons that the public commonly uses for self-defense might feasibly survive a constitutional challenge. Justice Scalia, writing for the majority, refused to be pinned down because he realized that, under any of the standard tests Court’s employ to test the constitutionality of a legislative act—specifically where a legislature attacks a core component of the Second Amendment—will often be found to be constitutional if the Court and an antigun government are of like mind.
Responding to Justice Breyer’s criticism of the majority for not elucidating a standard of review, Justice Scalia said this:
“Justice Breyer moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering ‘interest-balancing inquiry’ that ‘asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.’ [citation omitted]. After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: Because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—and the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”
Curiously, Justice Breyer, in his dissenting opinion, makes Justice Scalia’s point for Scalia’s refusal to articulate a standard of review—even strict scrutiny. Justice Breyer says:
“. . . adoption of a true strict-scrutiny standard for evaluating gun regulations would be impossible. That is because almost every gun-control regulation will seek to advance (as the one here does) a ‘primary concern of every government—a concern for the safety and indeed the lives of its citizens.’” United States v. Salerno, 481 U.S. 739, 755, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987). The Court has deemed that interest, as well as “the Government's general interest in preventing crime,” to be “compelling,” see id., at 750, 754, 107 S. Ct. 2095, 95 L. Ed. 2d 697, and the Court has in a wide variety of constitutional contexts found such public-safety concerns sufficiently forceful to justify restrictions on individual liberties, see, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969) (per curiam) (First Amendment free speech rights); Sherbert v. Verner, 374 U.S. 398, 403, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963) (First Amendment religious rights); Brigham City v. Stuart, 547 U.S. 398, 403-404, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006) (Fourth Amendment protection of the home); New York v. Quarles, 467 U.S. 649, 655, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984) (Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)); Salerno, supra, at 755, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (Eighth Amendment bail rights). Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter. I would simply adopt such an interest-balancing inquiry explicitly.”
And, in so doing, Justice Breyer made a glaring mistake.
Justice Breyer was so convinced that a test of some sort must be used, he failed to realize that, in some instances, as in Heller, a governmental action that effectively neutralizes a fundamental right does not require application of some sort of Court devised test, as the governmental action is per se invalid. A governmental action must be struck down if it is directed to the core of a fundamental right. If a governmental action is directed to the core of a fundamental right, that means the governmental action is invalid on its face, i.e., facially, or per se, invalid. That is a salient, if tacit point of Heller. The point made is really nothing new. The U.S. Supreme Court has struck down facially unconstitutional laws, repeatedly, in the past, bypassing application of any test to ascertain constitutionality of a governmental action when the governmental action attacks the very core of the right protected by the Bill of Rights. For a general review of and good discussion of cases involving laws that the U.S. Supreme Court struck down on the ground of facial invalidity, see, e.g., two academic articles, written by an expert on the issue of facially unconstitutional laws, Richard H. Fallon, Jr., Professor of Law at Harvard university, “Fact and Fiction About Facial Challenges,” 99 California Law Review 915 (August 2011); and, “As-Applied and Facial Challenges and Third Party Standing,” Harvard Law Review (April 2000). There are a plethora of academic articles on this subject.
Granted, Heller appears to be the first and only Second Amendment case, to date, where the U.S. Supreme Court has struck down a governmental action on the ground of facial invalidity—Justice Scalia finding application of any standard of review either to be redundant or possibly eliciting the wrong conclusion if applied–even if the words, “facial invalidity” do not appear expressly in Scalia's Heller opinion.
Courts should seriously consider the reality and enormity of government transgression as government, at the federal, State, and local levels, callously enacts laws and regulations that attack the core of the Second Amendment, albeit doing so under the obvious guise of promoting public safety. Courts of competent jurisdiction should call out such patently unlawful government actions for what they are–scarcely covert attempts to destroy the Second Amendment to the U.S. Constitution.
Laws and regulations, such as Maryland's Firearm Safety Act, should be found to be facially invalid as such laws and regulations are designed and implemented for no real purpose other than to prevent an American citizen from exercising his natural right to keep and bear arms under the Second Amendment. Courts should strike down such laws and regulations, unequivocally, peremptorily, totally, thereby sending a clear message to Congress, to the State Legislatures, and to local governments, that the Third Branch of Government, the Judiciary will not sit idly by as government seeks to legislate away the American citizen's fundamental right to keep and bear arms as codified under the Second Amendment.
We continue with our analysis of Kolbe in Part Five of this series.
*Occasionally, Courts will use a Roman numeral as an informal designation for a case, if a plaintiff in an older case files a new action, raising a similar issue in the new case, against the same defendant. In fact, the principal plaintiff, in the seminal Heller case—a case subsequently and often referred to, as the U.S. District Court of Maryland refers to it, as Heller I—filed a new action against the District of Columbia, challenging the District of Columbia’s registration requirement on handguns and long guns and also challenging the District of Columbia’s ban on so-called “assault weapons” and so-called large capacity magazines—the same sort of challenge that Plaintiffs make to the Maryland Firearm Safety Act, in the Kolbe case.
The citation of the recent Federal Circuit Heller case is, Heller vs. District of Columbia, 670 F.3d 1244 (Fed. Cir. 2011). This more recent case is often referred to, informally, as Heller II. We will be taking a close look at this case, as we continue with this important series of articles.
Note: it isn’t coincidence that antigun Courts all use the same faulty reasoning when ruling that facially unconstitutional laws, infringing the Second Amendment, nonetheless pass constitutional muster. These Federal Circuit Courts of Appeal—notably, the Second, Fourth, Seventh, and Ninth—dealing with the same or similar fact patterns, are, we believe, clearly working in concert, having created an unholy alliance to uphold laws unconstitutionally infringing the core of the Second Amendment. These Courts, an important component of the Judiciary—that should rise above the fray–above political and social dissension, exercising independent legal judgment—become, all too often, a lackey of political forces, doing nothing, really, to disguise that fact and doing nothing to disguise the fact, too, that they will ignore U.S. Supreme Court precedent when they wish to impose their own social and political will on society.
What makes the actions of these Courts particularly reprehensible is that their actions always have the pious imprimatur of the law—falsely suggesting that their conduct is forever above the fray of politics when it really isn't as they are merely masking, in their judicial orders, what it is they are really doing–what they have done all along–making political and legislative pronouncements, becoming a servant of the Press and of the First Branch of Government–the Legislature–rather than operating as a co-equal Branch of Government as the Founders of our Republic intended for them to operate–namely as the grand interpreter of the law that the Constitution has given them the singular power and authority to oversee.
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