The 4th Circuit Court of appeals has overturned the district court decision in Wollard v. Gallagher. One consequence, it seems, of the new field of Second Amendment jurisprudence is that intermediate scrutiny is the new rational basis review. Eugene Volokh notes:
But it seems to me that means the court is thereby deciding that the right to keep and bear arms doesn’t extend to carrying outside the home for self-defense. If a court lets the government deny the ability to carry guns outside the home for self-defense to nearly everybody, the court is in essence saying there is no such right to carry.
A constitutional right that can be trumped in some of its applications under intermediate scrutiny (or for that matter strict scrutiny) is a right, albeit a qualified one; consider, for instance, the right to engage in commercial speech, or the right to be free of sex discrimination. But a constitutional right that can be trumped in nearly all its applications, under whatever level of scrutiny, is not really a right.
This case will no doubt be appealed, and given we have a circuit split on this issue with the 7th Circuit, I think it’s safe to say the Supreme Court will take the issue up. I do hope that in this next case, the Court puts the kibosh on this intermediate scrutiny nonsense. I can understand why the Court doesn’t want to adopt these various levels of review for the 2nd Amendment, but there needs to be some standard for lower courts to follow, otherwise the end result will be every court adopting some nebulous lesser standard of review, and upholding every gun control law out there. That can’t be a serious way to treat a fundamental constitutional right.