View Full Version : Levels of scrutiny for dummies

06-20-2010, 7:11 PM
I know, I know... I've looked at the search for this topic, and found a few, and it talks about level of scrutiny, but I'm still a bit head scratchy on what one should expect whether McDonald is ruled with intermediate or strict scrutiny. If McDonald incorporates, what level of scrutiny do we get, and why? Does LoS depend on whether it's ruled PorI or DP?

What would be the Brady's & the Daley's worst nightmare? Could they incorporate without applying LoS? Duh... Huh? :(


06-20-2010, 7:52 PM
Unless the Court decides to take liberties and instruct the lower courts in dicta, the Court's decision(s) in McDonald really shouldn't address the issue of scrutiny (or, even more abstractly, "2A scrutiny") - it's simply not necessary to answer the [narrow] question presented. (That's not to say some, such as in a likely concurrence by Thomas, won't make clear how fundamental and necessary the rights protected by US2A are).

The first case to address real RKBA scrutiny at the SCOTUS level (outside of the "not rational basis" instruction in Heller) will likely be Sykes/Palmer.

06-20-2010, 8:24 PM
There are three levels of scrutiny:

1. Rational basis.
2. Intermediate scrutiny.
4. Strict scrutiny.

Rational basis means that a judge can think up any rational basis for the law - even if the politicians couldn't. It is a very rare law that can't pass this level.

Intermediate scrutiny is a bastard step child of strict scrutiny and usually only applies when there are real individual rights on both sides of an issue or the right in question is only created out of the existence of government in the first place. Those rights are usually around voting as the procedure for voting is somewhat arbitrary. There is no natural right solution to the "best way to be fair to all voters" in voting.

Strict scrutiny means that a law can't be over-broad or under-inclusive. It must be narrowly tailored to serve a compelling government interest. Barring for some time those that have been adjudicated mentally ill in such a way as to be a threat to self or others is a narrowly tailored restriction that impacts a compelling government interest for example.

McDonald will likely say that the RKBA is fundamental. Heller said that rational basis was "right out" as a way to look at restrictions on the RKBA (the dissents in Heller wanted to apply rational basis or simple balancing and find the states interest in decreasing homicide a rational basis.) Adding the likely ruling in Heller to the likely ruling in McDonald leads to comparisons with other fundamental rights which require strict scrutiny to be applied.

I however don't expect a specific spelling out of that issue. McDonald will be an interesting read.


hill billy
06-20-2010, 8:28 PM
Good posts. Thanks. I was wondering about this as well.

06-20-2010, 9:35 PM
less than 2 weeks away...I am (we are) so looking forward to the decision...it is like Christmas in June!