Wishful Thinking and the 2nd Amendment

       Bearing Arms has an article, "This Lawsuit Could Shatter ALL Federal Gun Control Laws," concerning an appeal of a criminal verdict handed down to Shane Cox which will directly challenge the constitutionality of the National Firearms Act (NFA). Cox, acting under authority of a Kansas preemption law on firearm and silencer manufacturing, began manufacturing and selling silencers, and eventually drew the attention of the ATF. He was arrested and, after a jury trial, was found to be in violation of the National Firearms Act.

       Cox is apparently appealing his conviction on grounds that the NFA violates the Second Amendment. The author of the Bearing Arms article is hopeful that this case will finally get the U.S. Supreme Court to recognize the restrictions the Second Amendment places on the federal government when it comes to firearms.

       Don't hold your breath. That ship has long sailed.

      As I've noted before, prior to McDonald, one could have made the argument that the Second Amendment reserved to the states any powers restricting or regulating firearms, and that the federal government therefore had no authority to regulate firearms, nor any need to do so because the states could provide any necessary regulations. Under such a system, for instance, Kansas would have been free to allow its citizens to own fully automatic weapons and silencers, and New York could have banned its citizens from owning any firearms. However, McDonald applied the Second Amendment to state governments making it nigh impossible to separate the application of the Second Amendment between the federal government and state governments. Holding that the Second Amendment precluded government regulation would now mean that no government entity would be able to regulate firearms. No court is going to go down that path.

       Rather, the issue will be whether a restriction is reasonable (something that the Heller decision allowed), and the appropriate standard of review--essentially what the government has to prove to show that its restriction is reasonable. The possible standards for restrictions on constitutional rights are strict scrutiny (requiring a compelling government interest, be narrowly tailored, and the law or regulation must be the least restrictive means to satisfy that government interest), intermediate scrutiny (only requiring that the law or regulation being challenged furthers an important government interest by means that are substantially related to that interest), and rational basis (that the law or regulation being challenged is rationally related to a legitimate government interest), although this latter standard seems to have been ruled out in Heller.

       There have been many cases addressing the appropriate level of scrutiny. For instance, in Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011), the court noted that there was a sliding scale of scrutiny applied to the First Amendment depending on the severity of the restrictions. In that case, the restriction was a complete ban on shooting ranges within Chicago, which the court held was so closely aligned with the right to keep and bear arms, and so restrictive, that the court required a "strong public-interest justification" for its ban: something between intermediate and strict scrutiny. The court also noted, in an earlier decision (U.S. v. Skoien, 614 F.3d 638 (7th Cir. 2010)) involving the criminalization of possession of a firearm by someone convicted of misdemeanor domestic-violence, it had only required "intermediate scrutiny" because the claim "was not made by a 'law-abiding, responsible citizen[.]'" Thus, according to the 7th Circuit, intermediate scrutiny is all that is required for criminal statutes regulating firearms.

       In U.S. v. Chester, 628 F.3d 673 (4th Cir. 2010), another possession of a firearm by someone convicted of misdemeanor domestic violence, the court also adopted an intermediate scrutiny standard, but left the door open for a higher level of scrutiny under different circumstances. Nevertheless, in another criminal case (U.S. v. Masciandaro, 638 F.3d 458 (4th Cir. 2011)), the court again applied intermediate scrutiny to possession of a concealed weapon in a vehicle, refusing a higher level of scrutiny because "a lessor showing is [all that is] necessary with respect to laws that burden the right to keep and bear arms outside of the home," and a higher scrutiny would unduly burden the ability of government to control crime.

       The Third Circuit, in U.S. v. Marzzarella, 614 F.3d 85 (3rd Cir. 2010), also adopted intermediate scrutiny for a criminal matter--possession of a firearm where the serial number had been obliterated. The Second Circuit, in Kachalsky v. County of Westchester, 701 F.3d 81 (2012), also did not require strict scrutiny when it upheld New York's regulatory scheme for requiring and issuing firearm permits necessary to carry a weapon outside the home.

      I could go on, but I think you can see the picture--the courts have already determined that, other than possession inside the home by a "law abiding" citizen, all that is required is intermediate scrutiny. Cox's case not only doesn't involve possession of a firearm in the home by a "law abiding citizen" (he was convicted of the crime of manufacturing a silencer), but also is a commercial rather than personal matter. Even as to the First Amendment right to free speech, the courts have held restrictions on commercial speech to a lower standard than personal or political speech. The same will occur here. Cox may generate new law, but probably not the type or result that gun owners will appreciate. We will have to look to Congress, not the courts, for changes to the NFA.