Tyler v. Hillsdale County Sheriff’s Department: Amicus Brief Arguing Against the Use of Strict Scrutiny in Second Amendment Cases


Case Information: Tyler v. Hillsdale County Sheriff’s Dep’t, No. 13-1876 (6th Cir. Brief Filed Aug. 19, 2015)

At issue: This case presents an as-applied challenge to the federal statute that prohibits firearm possession for individuals who have been involuntary committed to a mental institution. The plaintiff, Clifford Tyler, had been involuntarily committed to a mental institution in the 1980s, but had a clean record and bill of health since that time and argued that the statute, as applied to him, violated the Second Amendment. The Sixth Circuit agreed with this argument and, in doing so, became the first federal court of appeals to generally endorse strict scrutiny as the appropriate level of review for Second Amendment challenges. This case has important implications for how courts around the country analyze laws designed to reduce gun crime and violence.

The Law Center’s Brief: Our brief argues that the Sixth Circuit was wrong in its general conclusion that strict scrutiny should be the default level of review for Second Amendment cases. As the harshest level of review available, strict scrutiny is inappropriate in the context of firearms regulations that have been proven to save lives. If any heightened scrutiny is in fact mandated by the Second Amendment, intermediate scrutiny is the more appropriate level of review. Our brief argues that it is not true that laws that burden fundamental rights automatically trigger strict scrutiny and that several of the factors relied on in applying strict scrutiny in other contexts are not present in the Second Amendment arena. Unlike other constitutional rights, the exercise of Second Amendment rights inherently increase the risk of injury and death to others. Moreover, the Heller court itself implicitly rejected strict scrutiny when it classified several categories of laws, such as felon-in-possession laws, as “presumptively valid.”

Dangerous Constitutional Amendment Allows Convicted Felons to Challenge Common Sense Gun Laws


Photo by Brett Duke, NOLA.com The Times-Picayune

In early July, the Louisiana Supreme Court unanimously upheld a state law prohibiting convicted felons from possessing firearms. Despite this positive outcome, the case actually illustrates the very real dangers of an alarming trend that has recently emerged in certain parts of the country.

Challenges to the law arose after a dangerous and imprudent amendment was made to Louisiana’s constitution in 2012, requiring that all challenged state gun laws be subject to “strict scrutiny” review— the highest level of judicial review that exists. The Louisiana Constitution, like many other state constitutions, recognizes a right to keep and bear arms. However, in 2012, voters approved an NRA-supported amendment—the first of its kind approved in the U.S.—defining the right as “fundamental” and requiring courts to apply “strict scrutiny” when reviewing firearm regulations.

Because of this new “strict scrutiny” requirement, three convicted felons were able to challenge their convictions under a Louisiana statute which generally bars felons from possessing a firearm for ten years after the completion of their sentence. The challengers to the law in this case had been convicted of a variety of crimes including second degree battery, narcotics trafficking, and unauthorized entry of an inhabited dwelling.

The question was whether Louisiana may prohibit convicted felons from possessing firearms after serving their sentences. The Louisiana Supreme Court found “beyond question” that this law serves to protect public safety by keeping firearms out of the hands of those who are more likely to misuse them. In the words of the court, the case demonstrated that “convicted felons are not only at risk to re-offend, but are at risk to re-offend using firearms.” In upholding the law, the court concluded that “common sense and the public safety allow no other result.”

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Alabama Legislature Puts Irresponsible Measure Before Voters


Last year, the Louisiana voters’ approved a constitutional amendment that made it easier for criminals to challenge the state’s gun laws in court. The amendment was the first in the nation to require courts considering state constitutional challenges to gun laws to apply “strict scrutiny,” the highest judicial standard. This year, five states introduced similar measures. The legislation failed in Illinois, Missouri, Oklahoma and South Dakota, but succeeded in Alabama where it will be put before the voters during the next election. These amendments are extremely dangerous because they require courts to use a nearly insurmountable standard for all firearms laws. Even the U.S. Supreme Court has not required courts to use the level of scrutiny required by these measures.

In fact, several months after approval of the amendment in Louisiana, an Orleans Parish judge overturned the conviction of a felon who had been found in possession of an AK-47. The judge ruled that the state law prohibiting a convicted felon from possessing a firearm did not pass the high standard imposed by the new constitutional provision.  If voters approve the Alabama amendment, similar results are likely.

The moves by these states are especially alarming given that Louisiana has the second, and Alabama the third, highest gun death rate per capita in the United States. By making it nearly impossible to regulate firearms in these states, there is little hope that these tragic gun death rates will fall in the near future.

Want to know more? Check out other recent examples of extreme gun laws and policies in America on our Extremism in Action page.

Louisiana’s Latest Failure: Amendment to State Constitution May Make It Easier to Challenge Gun Laws

Photo by Brett Duke, NOLA.com The Times-Picayune

On Election Day, the voters of Louisiana approved a ballot initiative that may make it easier for criminals to challenge the state’s gun laws in court. That NRA-sponsored initiative – the first of its kind in the nation – amended the state constitution’s right to bear arms provision to force courts considering state constitutional challenges to gun laws to apply “strict scrutiny,” the highest judicial standard.

The new provision is outrageous because it will require courts to review laws under a certain standard, rather than letting them decide for themselves what standard to use, as they traditionally have done. Strict scrutiny is often described as “strict in theory, fatal in fact,” because the vast majority of laws subject to strict scrutiny are found to be unconstitutional. Even the Supreme Court has not advocated for the use of strict scrutiny in cases evaluating laws under the Second Amendment. Requiring such a high standard could jeopardize even modest laws to reduce gun violence in Louisiana. This is especially alarming in a state that, in 2010, had the second highest number of firearm deaths per capita.

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Louisiana On Its Way to Passing Strongest Pro-Gun Law in U.S.

Louisiana On Its Way to Passing Strongest Pro-Gun Law in U.S.
Ashley Portero, International Business Times, May 25, 2012

Louisiana recently passed legislation that would amend the state constitution to remove language specifically allowing the state to regulate concealed weapons, and provide that the right to keep and bear arms is “fundamental and shall not be infringed.”  The proposed amendment – which now must be adopted by the voters of Louisiana – also takes the highly unique step of enshrining in the state constitution a higher standard of proof for determining the constitutionality of any law that may restrict Louisiana residents’ ability to own and carry guns.