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.
⁃ 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?
⁃ 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?