From an NRA mail alert a few moments ago:
Funded largely by the National Rifle Association, the Jackson case was one of many coordinated civil rights cases filed in the wake of the Heller decision in 2008. The Jackson case is being litigated by the NRA’s West Coast attorneys at Michel and Associates, along with former U.S. Solicitor General Paul Clement.
The Jackson decision highlights the problems with the analytical framework for considering Second Amendment challenges recently fashioned by the Ninth Circuit in the United States v. Chovan case. That subjective “intermediate scrutiny” framework allows political and personal bias to creep into the law making and judicial review process, and effectively creates a toothless and overly deferential review of government infringements on Second Amendment rights. Under this type of watered-down judicial standard of review, judges who are so inclined can find that virtually all restrictions on the right to keep and bear arms are constitutional simply by accepting post hoc government justifications uncritically, or by characterizing an infringement as “insubstantial.”
The request for en banc review or Supreme Court review will seek a standard of judicial review in Second Amendment cases that is consistent with the instructions and warnings given by the Supreme Court in the District of Columbia v. Heller case.
TheJackson case is one of two Ninth Circuit cases being litigated by the NRA’s California legal team that are currently being considered for potential en banc review. The other case, Peruta v. County of San Diego, recently resulted in a tremendous decision from a three-judge panel confirming that the Second Amendment guarantees the right of law-abiding citizens to carry a firearm in public and striking down a Sheriff’s policy that required applicants to establish a special need before they could get a license to carry a firearm outside the home.
The NRA may not be the most groundbreaking gun rights organization in the world, but it does do one thing better than anybody else – exercise the ability to tap very deep pockets to fund these sorts of legal battles all over America, and to bring in top litigators like Clement and Gura to represent plaintiffs.
Once again, I see the malign effects of Scalia’s dicta in Heller, which some panels are choosing to interpret as leaving the door open for intermediate (or lower) scrutiny, rather than the strict scrutiny customarily applied to all other Bill of Rights amendments that have been incorporated against the states.
U.S. courts apply the strict scrutiny standard in two contexts, when a fundamental constitutional right is infringed, particularly those found in the Bill of Rights and those the court has deemed a fundamental right protected by the Due Process Clause or “liberty clause” of the 14th Amendment, or when a government action applies to a “suspect classification” such as race or, sometimes, national origin.
To pass strict scrutiny, the law or policy must satisfy three tests:
It must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.
The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored. The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this “least restrictive means” requirement part of being narrowly tailored, though the Court generally evaluates it separately.
Of course, the large majority of judges sitting on the Ninth Circus don’t personally even believe that the Second Amendment guarantees an individual right to keep and bear arms, so their willingness to find any and all justifications for infringing that right is understandable. However, it is not forgiveable.