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Paladin
08-04-2008, 7:40 AM
Okay, we've got the incorporation issue coming up w/in a year via Nordyke or w/in a couple of years via the SF/Chicago cases and the odds are it will go our way.

2 Qs re the next issue, the level of scrutiny.

(1) When (and via what case(s)) will the level of scrutiny be an issue?

(2) What are the odds that it will go our way (i.e., we'll get a circuit/SCOTUS to declare "strict" is the standard)?

Educated & informed guesses only and please briefly explain your reasoning.

hoffmang
08-04-2008, 9:07 AM
Scalia made it clear that the scrutiny is at least intermediate scrutiny and probably strict scrutiny. Rational basis and simple balancing tests were ruled out for the protected arms and the protected people. Arms are clearly those in general use for hunting, self defense, and sport. The people look to be the law abiding sane - very close to the definition used by the Pennsylvania ratification dissenters.

-Gene

Paladin
08-05-2008, 8:32 AM
Scalia made it clear that the scrutiny is at least intermediate scrutiny and probably strict scrutiny. Rational basis and simple balancing tests were ruled out for the protected arms and the protected people. Scalia's musings are just dicta at this point -- the Court did not make a holding re the level of scrutiny. They only held that neither the handgun ban nor the trigger lock/disassembled law would pass "any standard of scrutiny the Court has applied to enumerated Constitutional rights."

If Obama wins and the Court replaces a single justice from the majority in Heller w/an Obama pick, the 2nd A may not get strict scrutiny protection.

As I've said before, the most important thing pro-2nd A people can do from now until mid-November is fight to make sure McCain wins the presidency and the Repubs take back at least the Senate.

hoffmang
08-05-2008, 1:19 PM
Scalia's musings are just dicta at this point -- the Court did not make a holding re the level of scrutiny. They only held that neither the handgun ban nor the trigger lock/disassembled law would pass "any standard of scrutiny the Court has applied to enumerated Constitutional rights."


That's not actually the case. The two dissents attempted to use either rational basis or "balancing" (which is lower than intermediate scrutiny) and both of those failed. That makes them non-dicta as a majority did not join either.

Based on the failure of the dissents, the scrutiny is somewhere between intermediate and strict scrutiny.

-Gene