When it comes to discussions on firearms, often references are made regarding the need for common sense or reasonable restrictions. But when it comes to legislation intended to restrict a fundamental right, common sense and or reasonableness are not the appropriate standard to be used.
Since people will have varying opinions as to what is reasonable or derived from common sense, the standard that must be used is whether or not the proposed restrictions are lawful. Not that common sense or reasonable restrictions can’t be lawful or that lawful restrictions can’t be reasonable or based on common sense, they can be, but that reasonableness or being derived from common sense is not the metric used to establish or enact legislative restrictions of fundamental rights. We govern ourselves via the rule of law. We are subject to and live together under a government of laws, not the arbitrary will, common sense or reasonableness of men.
While no right is absolute, some rights (such as those in the BoR) have been identified as being fundamental rights and have greater importance, are more significant than others. Due to this inherent quality, any restrictions or limitations are subject to a more rigorous judicial standard of review to ensure; the law isn’t too broad in scope, will accomplish its goal, and doesn’t produce an overly burdensome infringement. In regards to the 2nd Amendment, the more rigorous judicial standard of review to be used is either Strict Scrutiny or Intermediate Scrutiny as opposed to a Rational Basis review.
Strict Scrutiny is typically applied when a fundamental constitutional right has been infringed or when a fundamental right is protected by the Due Process Clause. In order for a law to pass the test of strict scrutiny there must be a compelling governmental interest, the law must be narrowly tailored and it must be the least restrictive means for achieving the interest.
Intermediate Scrutiny is applied when the law in question implies an Equal Protection limitation. To pass the test of intermediate scrutiny the law must further an important governmental interest by means that are substantially related to that interest.
Rational Basis is applied to laws that are challenged as being capricious or arbitrary. To pass rational basis there must be a legitimate government interest and a rational relationship between the interest and the means of accomplishing that interest.
(It will be interesting to see where courts take us next. Both the Heller and McDonald decisions tacitly establish/confirm that the 2nd Amendment is a fundamental right and clearly establish/confirm it as an individual right, while the McDonald ruling held that the 2nd Amendment is incorporated by the Due Process clause. Additionally, neither ruling established a standard level of review for 2nd Amendment cases.)
To further the discussion on gun control it is vital to determine the following:
What is the goal of gun control legislation? The goal must be clearly defined. Is it to reduce criminal gun violence or any gun death or injury regardless if it is the result of a criminal act, a negligent act or an act of self-harm?
What legislation is being proposed? Some of the proposed legislative recommendations are; registration, waiting periods, limitations on capacity, limitations on ammunition (amount that can be owned, type), limitations on firearms that can be owned, limitations on location (within or without the boundaries of your home or property), limitations on method of carry (open or concealed), expansion of the types of prohibited persons,limitations on how private transaction transfers are carried out, limitations on firearm features, secure storage requirements, proficiency requirements, liability insurance, smart guns.
What level of scrutiny should be applied to the legislation, strict scrutiny or intermediate scrutiny?
I will start with the third question. While I would like to see strict scrutiny applied to any law that restricts a fundamental right, I believe that in most cases, applying strict scrutiny to laws regarding the 2nd Amendment is a bridge too far and would not allow many of the current restrictions we have stand. Intermediate scrutiny or some form of a hybrid between strict and intermediate probably offers the best balance between individual rights and government interest.
Regarding the goal of gun control legislation, broadly, I favor laws intended to reduce criminal acts of gun violence.
As for proposed legislation, the opportunity we have is an exercise in determining if what is being proposed would pass the test of intermediate scrutiny. To do that we need to have clear definitions or examples of important governmental interest and substantially related.