Why Scalia Matters

posted on March 28, 2016
Chip Somodevilla/Getty Images

This feature appears in the April ’16 issue of NRA America’s 1st Freedom, one of the official journals of the National Rifle Association.

“Not good enough! Do it again—but do it right this time!” 

In effect, that’s exactly what the federal 4th Circuit Court of Appeals said in January when it directed a Maryland court to reconsider a lawsuit arguing that Maryland’s 2013 ban on semi-automatic so-called “assault weapons” violates the Second Amendment. Less than a month later, the sudden death of U.S. Supreme Court Justice Antonin Scalia, author of the majority opinion in District of Columbia v. Heller, made this appeals court decision all the more critical. 

It’s the first time a federal appeals court has called for “strict scrutiny”—the highest level of review—to ensure that a semi-automatic ban doesn’t infringe Americans’ right to keep and bear arms. 

And it’s the first decision to create a “split” between federal appeals court circuits, where some courts say these gun bans pass muster—but the 4th Circuit cautions, “Not so fast.” 

That means it’s a big victory for your right to keep and bear arms.

But that also means, as NRA Executive Vice President Wayne LaPierre noted, “It’s just one small victorious battle in a much larger war that hinges decisively on who wins the White House this November.” 

Why? Because as NRA-ILA Executive Director Chris W. Cox pointed out, “The next president could appoint three or more justices to the U.S. Supreme Court, which is sure to be asked to resolve this ‘split’ between the different federal appeals courts’ rulings on your right to keep and bear arms.”With Justice Scalia’s untimely death in mid-February, the stakes have never been higher than right now.

And with Justice Scalia’s untimely death in mid-February, the stakes have never been higher than right now. (See our Scalia tribute here.) 

Today, seven states ban semi-automatic firearms like the AR-15—the fastest-selling rifles in America. Despite cosmetic features that make them look like military weapons, these rifles function no differently from any other semi-automatic. 

Maryland banned those firearms, along with magazines that hold more than 10 rounds, through its 2013 “Firearm Safety Act.” In response, several Maryland gun owners’ organizations, together with retailers and individuals, sued the state to repeal the ban. 

When a Maryland federal court upheld the ban, applying so-called “intermediate scrutiny” of the law, the plaintiffs filed an appeal. On appeal, a three-judge panel of the federal 4th Circuit ruled, by a vote of 2 to 1, that the lower court needed to review the law again, applying “strict scrutiny” instead of “intermediate scrutiny.” 

And now the case—Kolbe v. Hogan—could ultimately be headed to the U.S. Supreme Court to resolve the contradiction between the different courts’ opinions. 

How “Strict Scrutiny” Can Secure Your Gun Rights

What’s so important about the 4th Circuit’s ruling is that “strict scrutiny” is the highest level of judicial review, typically reserved for fundamental, individual rights guaranteed by the Bill of Rights. 

To satisfy “strict scrutiny,” the law must serve a “compelling governmental interest,” must be “narrowly tailored,” and be the “least restrictive means” to achieve that goal.

At the other end of the spectrum, the least restrictive level of review is so-called “rational basis,” which requires that a law or policy must be “rationally related” to a government interest that is “legitimate”—a term the Supreme Court has never defined. Between “strict scrutiny” and “rational basis” is the third of the three levels of review, so-called “intermediate scrutiny,” which is supposed to split the difference. 

However, “in reality, for some courts, ‘intermediate scrutiny’ has become ‘fake scrutiny,’” said attorney and constitutional scholar Stephen Halbrook, who has argued cases before the Supreme Court. “It’s like politicians who say, ‘I support the Second Amendment, but ...’ and then go on to justify just about any ban they want.” 

Other federal appeals court decisions—including those that upheld semi-automatic gun bans in Illinois, Connecticut and New York—have been “all over the board,” Halbrook said. 

A bit of explanation is in order here. The Supreme Court’s Heller (2008) decision noted that the firearms protected by the Second Amendment are those “in common use at the time.” Thus, the landmark Heller decision, which ended Washington, D.C.’s 32-year ban on handguns, noted that handguns are among the most commonly used firearms for self-defense in the home. Although the decision contained unfavorable language about “dangerous and unusual” arms, it confirmed unequivocally that those in “common use” are protected. 

The “Common Use” Test Should Protect The Guns You Own 

For that reason, in the past, courts often said that if a gun law banned firearms commonly kept in the home for protection, strict scrutiny would apply. But, “When it came to so-called ‘assault weapons,’ strict scrutiny went out the window,” Halbrook said.

One reason the 4th Circuit’s recent ruling is so encouraging is that where other courts have tried to minimize or shrug off “common use” of the firearms that have been banned, the 4th Circuit accurately noted, “In 2012, the number of AR- and AK-style weapons manufactured and imported into the United States was more than double the number of Ford F-150 trucks sold, the most commonly sold vehicle in the United States.” 

When the 7th Circuit upheld the Highland Park, Ill., semi-automatic gun ban, it tried to turn the “common use” test on its head, claiming in its opinion that, “During Prohibition the Thompson submachine gun was all too common in Chicago, but that popularity didn’t give it a constitutional immunity” from the 1934 National Firearms Act, which imposed a prohibitive tax on machine guns. But that argument is a non-starter: The only place submachine guns were in “common use” during Prohibition was in movies and reruns of “The Untouchables” that those judges watched on TV as kids. At a private fundraiser in New York, Clinton said, “The Supreme Court is wrong on the Second Amendment. And I am going to make that case every chance I get.”

In similar fashion, other federal appeals court judges have relied on little more than the rhetoric and hyperbole of the anti-gun lobby in justifying these gun bans. For example, in his dissenting opinion in the 4th Circuit case, Judge Robert B. King used the terms “assault weapon,” “assault long gun” or “assault rifle” no fewer than 25 times in 15 pages. Yet these are all terms of rhetoric—not reason. As Halbrook pointed out, “They just keep using the term ‘assault weapon, assault weapon, assault weapon’ over and over again, as if that’s supposed to be persuasive.” 

Indeed, Judge King starts his argument with a soundbite that sounds like it came straight from a speechwriter at the gun-ban lobby. “Let’s be real: The assault weapons banned by Maryland’s FSA are exceptionally lethal weapons of war,” the judge wrote. How many times have you heard the phrase, “Let’s be real,” in a federal court decision?

Fortunately, the majority of the 4th Circuit panel refused to tolerate that nonsense, and they strongly criticized King for implying “that we will bear some responsibility for future mass shootings. In our view inferences of this nature have no place in judicial opinions and we will not respond beyond noting this.”

Federal Courts Can’t Even Agree On Why Guns Should Be Banned

Even if the semi-automatics banned aren’t “unusual,” neither the legislatures nor the courts can agree on what supposedly makes them especially “dangerous.”

Pistol grips are an excellent example: Under the Highland Park ban, if a so-called “assault weapon” has a pistol grip without a shoulder stock, the gun is banned. But if it has a pistol grip with a shoulder stock, it’s legal. The New York and Connecticut bans are just the opposite: If the gun has a pistol grip with a shoulder stock, it’s banned, but if it has a pistol grip without a shoulder stock, it’s legal. The Maryland ban, in contrast, doesn’t restrict pistol grips, either with or without a shoulder stock.

Lawmakers and judges have also tried to assign evil intent to telescoping shoulder stocks, claiming that they make rifles more “concealable” when—as anyone who has ever used one knows—they’re about as “concealable” as a baseball bat or hockey stick. 

When all else fails, some have tried to justify gun bans on the “rationale” that they make people feel better, even if they don’t accomplish anything. When the 7th Circuit upheld the Highland Park ban for example, Judge Frank Easterbrook wrote for the majority that “If a ban on semi-automatic guns and large-capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that’s a substantial benefit.” (Emphasis added.)

Why The Second Amendment’s Survival Hinges On Election 2016

Despite the illogical reasoning and other faults in the 7th Circuit’s confirmation of the Illinois semi-automatic gun ban, the Supreme Court announced in December that it would not hear an appeal of the Highland Park case, meaning that for now, the gun ban stands. (Note that Justice Scalia strongly disagreed with the decision to not hear the case, and believed that in doing so the court had abdicated its responsibility to enforce the constitutional right to keep and bear arms.) 

But with the 4th Circuit’s decision to send the Maryland gun ban back to the lower court, there’s now a split in federal appeals court decisions that could ultimately end up in the U.S. Supreme Court—likely during the next president’s term of office.

Hillary Clinton has made her position on the Second Amendment frighteningly clear. At a private fundraiser in New York, Clinton said, “The Supreme Court is wrong on the Second Amendment. And I am going to make that case every chance I get.” 

For Clinton, standing up for the right of Americans to protect themselves and their families isn’t just dangerous and damaging to her bid for the White House—it’s downright wicked: “I’m going to do everything I can to rally people against this pernicious, corrupting influence of the NRA,” she said at the event. Clinton also said she would have “a bunch of litmus tests” for her nominees to the U.S. Supreme Court. 

When it comes to your Second Amendment right to keep and bear arms, self-proclaimed socialist Bernie Sanders is just as bad. Sanders has vowed to “ban semi-automatic assault weapons” which, he says, “are designed strictly for killing human beings.” 

What’s more, on NBC’s “Meet the Press,” in a thinly veiled—or poorly concealed—affront to the very notion of firearms designed for the purpose of self-defense, Sanders told Chuck Todd, “Guns used to kill people exclusively, not for hunting, should not be sold in the United States of America.” What that might mean to your right to keep and bear handguns—let alone semi-automatic firearms such as the AR-15—is no mystery.

With the recent death of Justice Scalia, the next American president will take office less than a year from now with two other justices in their 80s. With four or eight years in office, he or she will, in all likelihood, have an opportunity to appoint two, three or even more justices to the U.S. Supreme Court, and in so doing, completely change the face of the court for generations.

And the fact is, it wouldn’t even take that much to transform the Second Amendment, as we know it today, into little more than a memory. 

Because remember: Both of our landmark victories for the right to keep and bear arms—the Heller and McDonald cases—were 5-to-4 decisions by the Court. If just one justice from the majority in either one of those cases had voted the other way, our landmark victories would have been crushing defeats for your right to arms to protect yourself in your home. “Make no mistake: Everything we’ve fought for, every victory we’ve won, every gun ban we’ve rolled back or defeated, every freedom we’ve reclaimed over the past 30 years, is on the line in this year’s elections.”

And the loss of Justice Scalia, who voted with the majority on both cases, already tips the court to what could be a 4-4 divide on future gun rights cases.

It’s not hard to imagine the world we’d live in today if the Heller and McDonald decisions didn’t exist. There’d be no constitutional protection of your individual right to own a gun, even to protect yourself in your own home. Cities and states would be allowed to ban any gun for any reason—regardless of whether it was in “common use”—and the right to arms to protect yourself wouldn’t even be considered “fundamental.”

For all the many abuses that President Barack Obama has heaped upon the Second Amendment over the past seven years—from executive actions that sidestep Congress and short-circuit the legislative process, to “Fast and Furious” gun-smuggling schemes that arm the Mexican drug cartels as a means to indict and undercut your Second Amendment-protected rights—can you imagine the wholesale destruction your right to keep and bear arms would have faced if Obama hadn’t been restrained by the Supreme Court’s decisions? 

Now fast-forward a decade to imagine what we’ll face after a President Hillary Clinton—or President Bernie Sanders—“transforms” the Supreme Court by appointing three, four or five justices hand-picked and litmus-tested for their opposition to the Second Amendment.

Imagine Barack Obama as a justice on the Supreme Court. Don’t laugh, Hillary Clinton said appointing Obama to the highest court in the land was “a great idea.” 

“Make no mistake: Everything we’ve fought for, every victory we’ve won, every gun ban we’ve rolled back or defeated, every freedom we’ve reclaimed over the past 30 years, is on the line in this year’s elections,” said NRA’s Wayne LaPierre. 

“The race for the White House is a critical proposition for the Second Amendment as we know it,” said NRA-ILA’s Chris W. Cox. “Every gun owner in America needs to hear our message, join our ranks and vote their freedom on Election Day this year, or the right to keep and bear arms—the last, best hope for our freedom and safety as a nation—could be lost in the blink of an eye. But together we’ll stand and fight for that freedom as fiercely as we fight to defend our lives—because our lives depend on that freedom.”


18th century British soldiers and Americans
18th century British soldiers and Americans

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