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Intermediate Scrutiny – Constitutional Standard of Review
This standard requires that the law further an “important government interest”. It must do so in a manner that is “substantially related” to the objective. When laws only partially affect a suspect class or the rights involved border upon fundamental rights, this intermediate level of scrutiny applies. This standard has been applied in determining the constitutionality of laws or government action based upon sex; laws affecting the status of undocumented or illegal immigrants; restrictions on rights to own firearms; and content-neutral restrictions on free speech. The standard originated in the case, Craig v. Boren (1976), where the plaintiff challenged a law allowing females to purchase alcohol at a younger age than males.
- Example: The city of Atlantis passes an ordinance limiting the ability of individuals to own a firearm without first undertaking a gun safety course, passing a background check, and filing for a permit from the locality. This statute affects an individual’s 2nd Amendment rights to own a firearm, but it does not prohibit it. As such, this scenario would likely be evaluated under intermediate scrutiny. Atlantis must demonstrate an important government interest, such as the reduction of a high level of gun violence in the jurisdiction. The statute must be substantially related to achieving that objective. The constitutionality of the statute would turn on the interest of the state versus the burden that it places on an individual’s constitutionally protected right.
Discussion: Can you think of any recent cases applying intermediate scrutiny to overturn a government law affecting a suspect class or individual rights?
- One example is Mississippi University for Women v. Hogan(1982). In this case the court used the language “exceedingly persuasive justification” to justify a sex-based classification. Another case is United States v. Virginia which concerned the male-only admissions policy to the Virginia Military Institute.
Practice Question: Town A passes a law stating that no individual may transport a loaded weapon on public property without a license. A gun rights group challenges this law in court as restricting the 2nd Amendment’s right to bear arms. What standard will the court likely apply in determining the Constitutionality of this law?
- While this is a 2nd Amendment issue, the effect of the law does not fully infringe upon the fundamental right to bear arms by banning guns. Rather, there is an incidental limitation in order to realize one’s right. In such a case, the court would likely apply intermediate scrutiny to determine the constitutionality of that law. In doing so, it would determine if the law meets the following conditions: The law furthers an “important government interest”. In this situation, the government interest would likely be security and safety for the public. Then the court would examine whether the law is “substantially related” to this objective. Application of the intermediate scrutiny standard to such cases was first established in District of Columbia v. Heller, 554 U.S. 570 (2008).