Firearms Law Seminar - The Action At The Circuit Court Level

Joseph Greenlee - Spoke on how circuit courts have applied the rulings in Heller and MacDonald. There have been 150 post Heller second amendment decisions.  Excellent article and speaker regarding the decisions.

Mr. Greenlee noted that Courts are generally using the 2 part test - does the law implicate the Second Amendment and if yes then heightened scrutiny applies with a look at the severity of burden and whether law affects the core of the Second Amendment.  He gave an excellent overview of the Circuit Court approach since Heller and MacDonald.

Then David Kopel continued with the scrutiny analysis that has been applied to Second Amendment cases.

Opened with noting that today is the anniversary of the passing of the Firearms Owners Protection Act. When it showed up in House, Hughes blocked it but then McClure and Volkmer got a discharge petition to bring it to the floor directly. side form the Hughes amendment it was the most far reaching pro civil rights legislation on gun ownership at the Federal level.

Then he continued the analysis concerning Circuit Court application of Heller and MacDonald.

He Discussed the levels of scrutiny that are typically applied to legislation:

1. Rational basis - not insane, therefore ok. 

2. Intermediate scrutiny

3. Strict Scrutiny

But those three are not the only tests used as there are often subtests and standards. Like the First, the Second Amendment also is undergoing a variety of subtests and standards like the First Amendment analysis that has been used. Noted that prior restraints have been allowed in Second Amendment far beyond what is allowed in First amendment cases such as background checks and permit applications.

The closer to the core of the Second Amendment right, the closer to strict scrutiny we get. 4th Circuit for example had strict scrutiny with regards to arms in the home and intermediate for outside the home. Courts have generally held its a sliding scale with some aspects receiving strict scrutiny.

On this Monday, he noted the  9th Circuit issued a decision after looking at the Alameda County restriction on firearms stores within 500 feet of various things that factually prevented any gun store from opening in the county,  The 9th applied a standard that was not quite strict scrutiny to the law and remanded it to the lower court.

Mr. Kopel noted a key doctrinal question is what does intermediate scrutiny require in this context?

In short there's a lot going on at the Circuit Court level that will continue to affect Second Amendment rights, especially with the uncertainty at the Supreme Court level.