via Gun Watch
Another step has been taken to restore second amendment rights to the position that they held before the modern assault on the Constitution. It is an important case because it establishes the precedent that your second amendment rights cannot be permanently removed for a temporary condition; and that the proper level of scrutiny in the court is the highest accorded to fundamental constitutional rights, that of strict scrutiny. From the opinion of the court, pdf file:
BOGGS, Circuit Judge. This case presents an important issue of first impression in the federal courts: whether a prohibition on the possession of firearms by a person “who has been committed to a mental institution,” 18 U.S.C. § 922(g)(4), violates the Second Amendment. Twenty-eight years ago, Clifford Charles Tyler was involuntarily committed for less than one month after allegedly undergoing an emotionally devastating divorce. Consequently, he can never possess a firearm. Tyler filed suit in federal court, seeking a declaratory judgment that § 922(g)(4) is unconstitutional as applied to him. The district court dismissed Tyler’s suit for failure to state a claim. Because Tyler’s complaint validly states a violation of the Second Amendment, we reverse and remand.
It is of significant interest that much of the case centers on the refusal of the federal government to provide a mechanism for relief in these cases. In point of fact, disarmists have blocked passage of funding to allow cases to be reviewed, and the Justice Department refuses to review cases at all.
This case has far reaching consequences for those who were once involuntarily committed. It might be used to attack the provision, in a number of states, of prohibiting people who are under indictment, from possessing firearms. After all, they have not yet gone through due process; they are only charged, not convicted. Of considerable importance is the courts decision to apply strict scrutiny to the second amendment. The opinion notes that the various circuits have applied intermediate scrutiny in a large variety of significantly different ways. From the opinion:
What this also reveals is that our circuit is one of the few that has not entered this debate. Although we must “appl[y] the appropriate level of scrutiny,” ibid., we also must decide whether that is intermediate scrutiny or strict scrutiny. “A choice must be made.” Ezell, 651 F.3d at 706.
There are strong reasons for preferring strict scrutiny over intermediate scrutiny. First, the Supreme Court has by now been clear and emphatic that the “right to keep and bear arms” is a “fundamental righ[t] necessary to our system of ordered liberty.” McDonald, 561 U.S. at 778. In our view, that strong language suggests that restrictions on that right trigger strict scrutiny. It is true that strict scrutiny is not always “called for whenever a fundamental right is at stake.” Heller II, 670 F.3d at 1256 (majority opinion). The majority in Heller II forcibly argued this point. See id. at 1256–57. It is true, for instance, that in the First Amendment context, content-neutral regulations that restrict speech’s time, place, or manner are permissible if they survive a form of intermediate scrutiny—i.e., if the regulation promotes a significant interest unrelated to the suppression of a message and allows for ample alternative channels of communication. United States v. Grace, 461 U.S. 171, 177 (1983); accord Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). For commercial speech, as well, courts apply a form of intermediate scrutiny. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 566 (1980). In those two contexts, courts “impose similarly demanding levels of intermediate scrutiny.” Hucul Adver. v. Charter Twp. of Gaines, 748 F.3d 273, 276 (6th Cir. 2014). Those two tests are “close cousin[s], if not fraternal twin[s]” of one another. Id. at 276 n.1 (citation omitted).
The court found that there was no evidence that before 1968, people were denied their second amendment rights for merely having been involuntarily committed at some point in their lives.
This is the first case that I recall where a federal court has struck down a federal law as violating the second amendment, since Heller. The Palmer case against the government of the District of Columbia is arguably not a federal law, but one established by the government of D.C.
©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
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