Heller left unanswered a significant question: The level of scrutiny the Court must apply to the restriction on Mr. Booker’s individual right to bear arms. As Heller notes, the “traditionally expressed levels” are “strict scrutiny, intermediate scrutiny, and rational basis.” The Heller majority acknowledged that it did not establish “a level of scrutiny for evaluating Second Amendment restrictions,” but it left some hints. First, the Heller majority rejected Justice Breyer’s “interest-balancing” approach, observing that it knew “no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach.” Second, the majority conceded that the District of Columbia law would pass rational-basis scrutiny and, since it ruled the District’s complete ban on handguns unconstitutional, the necessary implication is that the rational-basis test is not applicable. The remaining options are strict and intermediate scrutiny.
Strict scrutiny is generally reserved for statutory restrictions that affect the exercise of certain “fundamental right[s].” The individual right to bear arms might well be a fundamental right, the restriction of which requires strict scrutiny. This conclusion is supported by the placement of Second Amendment within the Bill of Rights alongside this Country’s most precious freedoms. However, as Justice Breyer points out, Heller expressly approves some statutory restrictions — the types of people who may exercise this freedom; the places where this freedom may be exercised; and, the ability to buy and sell the objects of this freedom — “whose constitutionality under a strict scrutiny standard would be far from clear.” “Intermediate scrutiny is used, for discrimination based on gender and for discrimination against nonmarital children.” Heller itself concedes that it does not “clarify the entire field.” It consciously left the appropriate level of scrutiny for another day.
Rather than tackle this complex and unanswered question, the Court starts from a different place. Heller teaches that even though the Second Amendment guarantees an individual right to bear arms, it is “not unlimited.” Heller states that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” A useful approach is to ask whether a statutory prohibition against the possession of firearms by felons and the mentally ill is similar enough to the statutory prohibition against the possession of firearms by persons convicted of the misdemeanor crime of domestic violence to justify its inclusion in the list of “longstanding prohibitions” that survive Second Amendment scrutiny.
The Court concludes it does. To reach this conclusion, the Court starts by comparing the constitutionally-sanctioned prohibition against firearm possession by felons with the prohibition against persons convicted of misdemeanor crimes of domestic violence. A person can, of course, be convicted of a felony which had nothing to do with physical violence and which would not necessarily predict future misuse of a firearm. Nevertheless, the law forbids any convicted felon, regardless of the nature of the felony, from possessing firearms and Heller constitutionally sanctioned this broad prohibition. [Footnote: The same point is generally applicable to the mentally ill….]
By contrast, the predicate offense under which Mr. Booker was convicted is defined in 18 U.S.C. § 922(g)(9) as requiring “the use or attempted use of physical force” by someone who is a spouse, parent, or guardian of the victim or someone in a position similar to a spouse, parent, or guardian of the victim. [Footnote: Mr. Booker emphasizes that an individual may be convicted of a misdemeanor crime of domestic violence in Maine by reckless behavior; he argues that there is not a significant enough government interest to deprive him of his Second Amendment right if he acted only recklessly. However, the felony convictions to which Mr. Booker’s predicate offence is being compared run the gamut of the mens rea spectrum, and a domestic violence offender’s mens rea does not impact the Court’s analysis under Heller.] If anything, as a predictor of firearm misuse, the definitional net cast by § 922(g)(9) is tighter than the net cast by § 922(g)(1). Turning to the governmental interest, the manifest need to protect the victims of domestic violence and to keep guns from the hands of the people who perpetrate such acts is well-documented and requires no further elaboration.
Based on the absence of a meaningful distinction between felons and persons convicted of crimes of domestic violence as predictors of firearm violence, the critical nature of the governmental interest, and the definitional tailoring of the statute, the Court concludes that persons who have been convicted of a misdemeanor crime of domestic violence must be added to the list of “felons and the mentally ill” against whom the “longstanding prohibitions on the possession of firearms” survive Second Amendment scrutiny.
Not an unanswerable argument, of course, but at least a plausible and relatively detailed attempt to confront the underlying question, unlike some of the other early post-Heller district court decisions (see, for instance, here).