Strictly Speaking

I’d like to thank victim-disarmament advocate Jackie Stellish for admitting that gun control laws are unconstitutional.

The proposed amendment is not the same – ours wants “strict scrutiny.” The “strict scrutiny” language will make it much easier to bring and win legal challenges to Iowa’s gun laws.

It requires “strict scrutiny” be applied to any firearms laws, therefore much more likely a court could strike down important state laws that protect public safety, such as Iowa’s background check, concealed-carry and permit-to-purchase laws.

The concept of strict scrutiny is a binding precedent set by the Supreme Court in United States v. Carolene Products Company, 304 U.S. 144 (1938). More specifically, the infamous Footnote Four.

“There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth….”

I could stop there, having shown that — no doubt to Ms. Stellish’s dismay — strict scrutiny must be applied to any gun control law, as they infringe upon the Second “of the first ten amendments.” I needn’t show what the effect of such scrutiny would be because Stellish has already conceded that gun control laws will fail upon close examination. One might wonder, rhetorically, of course, exactly why Jackie Stellish is deliberately and overtly advocating for the violation of human/civil rights through unconstitutional laws. I seem to recall something about “conspiracy against rights.”

But this is educational, and others may not be so insightful as Stellish. I continue.

A law subjected to strict scrutiny must pass three tests. All of them.

  1. It must be justified by a compelling governmental interest.
  2. The law or policy must be narrowly tailored to achieve that goal or interest.
  3. The law or policy must be the least restrictive means for achieving that interest: there must not be a less restrictive way to effectively achieve the compelling government interest.

Take H.R. 8 Bipartisan Background Checks Act of 2019 for example.First, it infringes upon a constitutionally enumerated right, so right off strict scrutiny is automatically required. Now the tests.The compelling governmental interest is “to ensure individuals prohibited from gun possession are not able to obtain firearms.” Presumably the intent would be to protect life, one of the Declaration of Independence‘s unalienable rights which “Governments are instituted” to secure.

Test one passed.

Is the law narrowly tailored to achieve that goal? No.

  • It requires everyone wishing to transfer a firearm to prove they aren’t prohibited, not just those who are.
  • It targets all transactions even though government reports confirm that prohibited persons most commonly acquire firearms through unlawful channels (primarily the black market and theft).
  • By far the most commonly used in crime type of firearm is handguns. This bill requires checks for all firearms.
  • Requiring everyone to prove they are not prohibited persons (rather requiring the government to prove they are) is presumption of guilt without due process, and a prior restraint on rights.Test two failed.Is the law the least restrictive means available? No.
    • One could create a toll-free number which any seller could call, input the buyer’s social security number to an automated system, and get an instant pass/fail, and a control number. Instead, both must travel to an FFL, pay a fee, fill out a 4473, the FFL enters the firearm in the bound book, and makes the NICS call. This creates a permanent record of who has what.
    • One could avoid regulating 100 million gun owners, and limit the regulation to prohibited persons. Via NICS, the government already tracks them. Those on parole/probation are already subject to searches, and the dangerously mentally ill shouldn’t be on the street anyway.
    • Since the black market is the primary source of crimes guns, one could ignore other transactions, and concentrate on eliminating that market with existing laws. Firearms trafficking is illegal, after all.

    Test three failed.

    H.R. 8, if passed and signed would be unconstitutional. Not to mention stupid, if the real goal was to reduce gun violence. But we know what they want.

    Shall we apply strict scrutiny to a few more victim-disarmer wet dreams?

    “Assault weapon” ban:
    1. Interest – Protect life. Check.
    2. Narrow – Bans large class of implements rarely used in violent crime, not just the handguns used predominantly. Fail.
    3. Least restrictive – Ban large class of weapons commonly held for defense, when they could simply use sentence enhancement for unlawful use. Fail.

    The ban would be unconstitutional.

    Safe storage”
    1. Interest – Protect life. Check.
    2. Narrow – Requires all defensive tools to be “secured,” even when unnecessary. Fail.
    3. Least restrictive – One could set penalties for intentionally (to meet mens rea requirements) allowing access by a prohibited person or unsupervised child and bad things actually happen. Fail.

    The ban would be unconstitutional.

    Please note that in HELLER the Supreme Court ruled that “safe storage,” even in the form of a trigger lock, fails any of the standards of scrutiny the Court has applied to enumerated constitutional rights”, not just strict scrutiny. Defense attorneys, take note.

    1. Interest – Protect life. Check.
    2. Narrow – Similar to background checks. Targets everyone, not criminals. Fail.
    3. Least restrictive – Redundant, since FFL purchases — as yet — require NICS checks. Fail.

    The ban would be unconstitutional.

    The only reason these rights-violating laws stand is the appointment of judges who actively refuse to perform their constitutional and judicial duty to apply strict scrutiny to laws infringing the Second Amendment.


    Carl is an unpaid TZP volunteer. If you found this post useful, please consider dropping something in his tip jar. He could really use the money, what with truck repairs and recurring bills. And the rabbits need feed. Truck insurance, lest I be forced to sell it. Click here to donate via PayPal.
    (More Tip Jar Options)

    Ed. note: This commentary appeared first in TZP’s weekly email alert. If you would like to be among the first to see new commentary (as well as to get notice of new polls and recaps of recent posts), please sign up for our alert list. (See sidebar or, if you’re on a mobile device, scroll down). Be sure to respond when you receive your activation email!


5 thoughts on “Strictly Speaking”

  1. “Please note that in HELLER the Supreme Court ruled that “safe storage,” even in the form of a trigger lock, fails “any of the standards of scrutiny the Court has applied to enumerated constitutional rights”, not just strict scrutiny. ”

    Wow. I wasn’t aware of that. So how can states like Massachusetts still enforce their “safe storage” laws?

    1. “3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment . The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense.”

      The same NY and NJ ignore the safe passage provisions of FOPA.

      1. I read this as specifically citing DC’s requirement for total inoperability of the gun while not actively in use, which was multistep and pretty drastic. There’s a spectrum of safe storage laws ranging from “loaded but in a quick-access lockbox” to “disassembled and stored at the local armory.” Also, many states exempt guns that are loaded and holstered while in your home to be exempt from safe storage law, which DC forbade. DC’s law in particular was so oppressive that it was easy to stomp. To imply that SCOTUS was invalidating all safe-storage law is almost certainy a reach.

  2. In WA state what they did is not define “safe storage” and created a new crime “community endangerment” which gives the prosecutor the ability to defines it as he/she pleases.

    1639 should fail the constitutional test that is if we still have one.

Leave a Reply

Your email address will not be published. Required fields are marked *