A court just made it harder to pass strict gun laws

A federal appeals court just cast doubt on the legality of Maryland’s 2013 assault weapons ban, one of the strictest such laws in the nation.

The ban, passed after the mass shooting that killed 26 people in Newtown, Connecticut, outlawed the purchase of semiautomatic weapons that can fire more than 10 rounds at a time. (Under the ban, owning the gun used by the Newtown shooter, an AR-15 semiautomatic assault rifle that can fire up to 30 rounds at a time, would have been illegal.)

The Fourth Circuit Court didn’t exactly strike down the ban. Instead, in a 2-1 decision released on Thursday, it sent the legal challenge to Maryland’s gun law back to a lower court so it could be analyzed using a more stringent constitutional standard known as “strict scrutiny.”

Maryland’s law was challenged by a group of gun store owners and individuals who said the weapons are less dangerous than those used in the military and are used for lawful purposes, including hunting and self-defense, according to the Washington Post.

While that question is being reconsidered, the ban will stay in place. But this is the first time a court has demanded that “strict scrutiny” be applied to an assault weapons ban – and it may imperil the constitutionality of similar bans across the country.

Strict scrutiny is a legal doctrine that demands, whenever a law is passed that abridges a constitutional right, it meet a “compelling governmental interest.”

Normally when a law is passed, courts only require that the legislative body approving the law have good reason to think it will have a positive effect. But when a law strays into the territory of one of our legally defined “fundamental rights,” people defending that law need to show that it is both very necessary and as limited an encroachment as it could possibly be.

So in strict scrutiny cases, a court assumes that a law encroaching on a “fundamental right” is unconstitutional unless proven otherwise, rather than vice versa in cases with looser levels of scrutiny. Until now, gun laws were assessed using these less stringent approaches.

“Fundamental rights” are a broad and ever-changing category, but the rights to privacy, free speech, and freedom of religion are a few of the categories protected.

In this case, the Fourth Circuit Court has defined the “right to own a gun” as yet another fundamental right, the first time any federal court has made that determination.

We don’t yet know whether the district court in Maryland will actually invalidate the state’s assault weapons ban now that it’s required to apply strict scrutiny. But either way, yesterday’s decision opens the door to other courts (especially in more conservative jurisdictions) to apply strict scrutiny to tough gun laws and use it to invalidate them.

Right now, aside from Maryland, six other states and Washington, DC, have similarly strict laws in place. Those states are California, Connecticut, Hawaii, Massachusetts, New York, and New Jersey.

Other federal appeals courts across the country have upheld similar bans before, in conflict with this decision. In 2011, the DC Court of Appeals upheld DC’s weapons ban, and last year, the Seventh Court of Appeals upheld a similar ban in Illinois. The Supreme Court declined to hear that case in December.

“To put it mildly, it troubles me that, by imprudently and unnecessarily breaking from our sister courts of appeals … we are impeding Maryland’s and others’ reasonable efforts to prevent the next Newtown,” wrote Judge Robert B. King in a caustic dissent.

Because the appeals courts were in agreement on this issue before the Fourth Circuit Court decision, the Supreme Court has so far declined to hear challenges to the constitutionality of such an assault weapons ban. But since this decision creates a disparity in the way that appeals courts have decided the issue, the split will now likely require the Supreme Court to step in.