Monday, May 2, 2011
A three-judge panel of the Ninth Circuit ruled today that a ban on gun shows on municipal property does not violate the Second Amendment.
In the long-running and procedurally dizzying case Nordyke v. King, the panel rejected a categorical application of strict scrutiny to all Second Amendment claims and instead applied a "substantial burden" test to the municipal ban:
Because the Supreme Court has yet to articulate a standard of review in Second Amendment cases, that task falls to the courts of appeals and the district courts. . . .
The Supreme Court's reasoning in Heller and McDonald suggests that heightened scrutiny does not apply unless a regulation substantially burdens the right to keep and to bear arms in self-defense. . . .
We are satisfied that a substantial burden framework will prove to be far more judicially manageable than an approach that would reflexively apply strict scrutiny to all gun-control laws.
The panel ruled that the ban on gun shows on municipal property did not substantially burden the Second Amendment right to keep and to bear arms. (It also ruled that the ban did not violate the First Amendment or the Equal Protection Clause.)
Judge Gould, concurring, would have upheld the ban under a rational basis test. Here's Judge Gould's formulation:
Drawing from First Amendment doctrine, I would subject to heightened scrutiny only arms regulations falling within the core purposes of the Second Amendment, that is, regulations aimed at restricting defense of the home, resistance of tyrannous government, and protection of country; I would subject incidental burdens on the Second Amendment right (analogous to time, place, and manner speech restrictions) to reasonableness review.