No Right to Carry in the 4th Circuit

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.

7 thoughts on “No Right to Carry in the 4th Circuit”

  1. This was not unexpected. The 4th Circus was a collective rights circuit before Heller and remains a collective rights circuit after Heller, McDonald and no matter what the Supremes say the 4th Circuit will almost certainly do anything they can to effectively or practically repeal the key Heller findings.

    The same people who decided the people in the 4th circuit had no 2A rights didn’t go anywhere when Heller was handed down, they just quietly seethed in anger awaiting their chance at revenge.

    The standard of review will have very little to do with lower court conduct. If you read Masciandaro, you’ll see that they may be hanging their hat on a particular meme, but they are careful to raise other memes to justify their ruling to themselves. These judges are human just like everyone else and if you get a ruling at the supreme court saying that only strict scrutiny may be used for 2a cases, suddenly all laws will pass strict scrutiny. The bias these judges hold in favor of the state will not go away if a standard of review is set, other laws are passed, or if the apocalypse comes.

  2. Per Professor Volokh, the courts are not properly applying intermediate scrutiny. In no other cases of fundamental right jurisprudence is there complete legislative deference. Indeed, one of the bedrock principles of heightened scrutiny is burden-shifting (where the government rather than the individual must justify – with evidence — the constitutionality of their restrictions). So taken to its extreme, intermediate scrutiny coupled with total deference results in less judicial review than rational basis scrutiny — it is no review whatsoever.

    It looks like the Court of Appeals of Maryland was right when they said, “If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.”

    Which means that we’ll soon find out if there really is such a thing as the “Heller Five.”

    1. “If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.”

      Because when the Founders wrote “keep and bear” and “shall not be infringed”, the language wasn’t clear enough.

      1. Yeah, just like when they wrote, ”Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

        This is what happens when the courts start rewriting the Constitution.

  3. Until the judges and over government officials who know they can violate civil rights with impunity and cause countless disarmed innocent deaths, are thrown into prison for the rest of their lives, the language will NEVER be clear enough.

  4. Think that this will give more confidence to Illinois to take their case to SCOTUS?

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