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Tincon
10-28-2013, 8:12 PM
The Supreme Court has already set a standard of scrutiny for 2A cases. It is, at a minimum, strict scrutiny.

Under the weight of history, and the Bill of Rights contained within the U.S. Constitution, the United States Supreme Court has rejected an “interest-balancing inquiry.” Id. at 634. Furthermore, the Supreme Court has determined that the Second Amendment is the very product of an interest-balancing by the people. Id. at 635. This Court has also held that “it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.” McDonald, 130 S.Ct. 3020, 3042.

This fundamental right was chosen by the framers of the Constitution to be included because it was as cherished and important as every other right codified therein and established as the supreme law of the land. Such a right cannot, and should not, be dismissed as anachronistic or inconvenient. As with the freedom of speech and of the press, we must translate its meaning and uphold its heritage even as we enter a modern technological era unimaginable to Nation’s our founders. Now, more than ever, in a world which seems to hold an ever increasing number of untold dangers, our long held freedoms must be protected. This must not be the last generation to enjoy them.

An overwhelming body of precedent stands for the proposition that “strict scrutiny applied when government action impinges upon a fundamental right protected by the Constitution.” [I]Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 54 (1983). And, as the US Supreme Court has held, there is no reason why the “Second Amendment should be singled out for special—and specially unfavorable—treatment. We reject that suggestion.” McDonald, 130 S.Ct. 3020, 3043.

The US Supreme Court has also rejected the tier of scrutiny immediately below strict, intermediate. In his dissent, Justice Breyer mentions certain “cases applying intermediate scrutiny. . . .” Heller, 554 U.S. 570, 704 He then cites Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180, 195 (1997) (deciding a First Amendment case on the basis of intermediate scrutiny). Justice Breyer goes on to suggest that “[t]here is no cause here to depart from the standard set forth in [I]Turner, for the District's decision represents the kind of empirically based judgment that legislatures, not courts, are best suited to make.” Heller, 554 U.S. 570, 705. Justice Breyer then uses the language “interest-balancing inquiry” to describe the intermediate standard he would adopt. Heller, 554 U.S. 570, 689 (2008).

The US Supreme Court has rejected that standard, holding that:
"We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrongheaded views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which Justice BREYER would now conduct for them anew." Id.

The US Supreme Court has considered and rejected intermediate scrutiny as the standard to apply to the Second Amendment. The US Supreme Court has declared that the Second amendment is a fundamental right. The US Supreme Court has said that strict scrutiny is applied when government action impinges upon an enumerated fundamental Constitutional right. Strict scrutiny is the only proper standard to apply an infringement on the constitutional right to keep and bear arms. Q.E.D.

Tincon
10-28-2013, 8:19 PM
Note: I created and own the content above. Feel free to use for whatever purpose, without restriction. I'd appreciate a cite to this page/site, but no need wherever it would be inappropriate or inconvenient. Stay tuned for "Why the Second Amendment applies outside the home" and "Why restrictions of carry outside the home must be deemed unconstitutional under even intermediate scrutiny." At some point I'll also address why AR and AK platform rifles must receive Second Amendment protection, and why bans on those weapons must be deemed unconstitutional under even intermediate scrutiny.

Librarian
10-28-2013, 8:19 PM
That's certainly what I thought was true.

What then explains the Circuit Courts of Appeals failures to use that analysis?

KCBrown has a well-reported answer.

Tincon
10-28-2013, 8:28 PM
That's certainly what I thought was true.

What then explains the Circuit Courts of Appeals failures to use that analysis?

KCBrown has a well-reported answer.

Maybe no one 'splained it to 'em right.;)

Truthfully, I think Heller and McDonald, while IMO creating bulletproof precedent, as above, did not make a plain statement on any of those issues. They beat around the bush a lot. But the answer is there. Now I don't know why they did that, perhaps internal politics, or not wanting to go to far in the first case that upset what was precedent for most of the 20th century.

And of course leaps the Supreme Court failed to explicitly make, the COA are even more reluctant to attempt. I don't think anti-gun sentiment is really the issue, these guys don't seem to me the type that would intentionally attempt to undermine the entire system they built their lives on. I think, personal feelings aside, they accept Heller as the law. But They are waiting for SCOTUS to make the next move. Which I believe (and hope) will be made soon.

KABA556
10-28-2013, 9:31 PM
Heller largely failed to address the issue of BEARING arms... They went on and on about keeping a handgun for self-defense in the home, but the right is more than just KEEPING arms it is also BEARING arms.

If you're Second Amendment right can be confined to your home then in theory you could have your First Amendment rights restricted to your home.


The right to carry a loaded pistol for self-defense outside of your home is a crucial part of the Second Amendment, particularly in regards to the word "BEAR" in phrase "to keep and BEAR arms."

Tincon
10-28-2013, 9:38 PM
Heller largely failed to address the issue of BEARING arms... They went on and on about keeping a handgun for self-defense in the home, but the right is more than just KEEPING arms it is also BEARING arms.

If you're Second Amendment right can be confined to your home then in theory you could have your First Amendment rights restricted to your home.


The right to carry a loaded pistol for self-defense outside of your home is a crucial part of the Second Amendment, particularly in regards to the word "BEAR" in phrase "to keep and BEAR arms."

I don't think they did, but that's another thread, coming soon.

CapS
10-28-2013, 9:59 PM
Well thought, and very well explained.

Thanks!

:oji:

Cap

speedrrracer
10-29-2013, 8:35 AM
The OP identifies the problem.

Heller only specifies strict scrutiny if one is intellectually honest. Even with the precedent of Heller, SCOTUS itself could barely apply Heller to the states, winning a narrow 5-4 decision in McDonald.

Political preferences are vastly more deterministic than the Constitution when predicting a court's decision. Bottom line: None of this matters a whole lot. Sure, if we can get a miracle Court of completely honest, apolitical Justices, we're GTG, but if you think that's ever possible, I have some oceanfront real estate to sell you in Nevada.

Here in reality, we're stuck with liars like Sotomayor, who, in their Senate hearing, claim to support Heller and be pro-2A and even have an uncle in the NRA, but then vote against McDonald. :facepalm:

ccmc
10-29-2013, 9:52 AM
The OP identifies the problem.

Heller only specifies strict scrutiny if one is intellectually honest. Even with the precedent of Heller, SCOTUS itself could barely apply Heller to the states, winning a narrow 5-4 decision in McDonald.

Political preferences are vastly more deterministic than the Constitution when predicting a court's decision. Bottom line: None of this matters a whole lot. Sure, if we can get a miracle Court of completely honest, apolitical Justices, we're GTG, but if you think that's ever possible, I have some oceanfront real estate to sell you in Nevada.

Here in reality, we're stuck with liars like Sotomayor, who, in their Senate hearing, claim to support Heller and be pro-2A and even have an uncle in the NRA, but then vote against McDonald. :facepalm:

Good point. BTW what's the layman's definition of strict scrutiny, intermediate scrutiny and similar?

speedrrracer
10-29-2013, 10:26 AM
Good point. BTW what's the layman's definition of strict scrutiny, intermediate scrutiny and similar?

From another poster's response (http://www.calguns.net/calgunforum/showpost.php?p=10380422&postcount=18) to a similar question:

Rational basis (gov't pukes up some numbers, Court falls all over itself trying to make up an excuse why govt should be allowed to get what it wants). This is the lowest test...provides the least / no protection from the govt raping your rights.

Intermediate scrutiny (the "test that ate everything"?). This is the test that gets used most often, it seems. Catch-all level for anytime the Court wants more than the Govt's say-so but doesn't really make the Govt sweat it out.

Strict scrutiny. The highest level of protection from the govt. My extremely limited understanding is that to qualify, it has to be a fundamental, enumerated right that's being attacked, and it's the core of the right that's at issue and your plaintiff is pretty much spotless.

glockman19
10-29-2013, 10:34 AM
Excellent Analysis...Thanks

Tincon
10-29-2013, 11:49 AM
From another poster's response (http://www.calguns.net/calgunforum/showpost.php?p=10380422&postcount=18) to a similar question:

Rational basis (gov't pukes up some numbers, Court falls all over itself trying to make up an excuse why govt should be allowed to get what it wants). This is the lowest test...provides the least / no protection from the govt raping your rights.

Intermediate scrutiny (the "test that ate everything"?). This is the test that gets used most often, it seems. Catch-all level for anytime the Court wants more than the Govt's say-so but doesn't really make the Govt sweat it out.

Strict scrutiny. The highest level of protection from the govt. My extremely limited understanding is that to qualify, it has to be a fundamental, enumerated right that's being attacked, and it's the core of the right that's at issue and your plaintiff is pretty much spotless.

Eh, not quite. Most notably, strict scrutiny has absolutely nothing to do with the plaintiff(s).

Formally it's like this:

STRICT SCRUTINY: The government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest.

INTERMEDIATE SCRUTINY: The government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest.

RATIONAL BASIS SCRUTINY: The govenment need only show that the challenged classification is rationally related to serving a legitimate state interest.

In reality, almost no law, and certainly no law against something not directly harmful (like mere possession of a firearm) withstand strict judicial scrutiny. The only way for an anti-gun law to survive under strict scrutiny would be if the 2A didn't apply at all (for example to "dangerous and unusual" guns).

With intermediate scrutiny, the court will conduct a balancing test between the value of the right violated, and the public (government) interest. As explain in the OP, the Supreme Court has rejected this type of test for the 2A.

Under rational basis almost any law survives. Very few laws have been struck down under rational basis. Rational basis will not be the level of scrutiny applied to 2A (for many reasons, but it was specifically precluded by the supreme court).

ccmc
10-30-2013, 11:41 AM
Thanks for the info.

hardlyworking
10-30-2013, 2:48 PM
Nicely done Tincon.

Sadly, since this has been argued to be true above, that means KCB must also be true - that Judges are "judicially bankrupt" and in open defiance for political reasons (or fear) of History and SCOTUS.

kcbrown
01-17-2014, 4:40 PM
Waking this from the dead a bit, since I didn't see this thread at all until now (I saw it now as a side effect of a search I was doing)...


In reality, almost no law, and certainly no law against something not directly harmful (like mere possession of a firearm) withstand strict judicial scrutiny.


This is apparently not correct. Read: Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=897360)

IVC
01-17-2014, 4:57 PM
The only way for an anti-gun law to survive under strict scrutiny would be if the 2A didn't apply at all (for example to "dangerous and unusual" guns).

I would guess that, e.g., a training requirement with a shall issue license to prove training as a requirement for CCW would pass. Similarly, any law against brandishing would pass, thus preventing someone from drawing a weapon just because he/she feels like carrying it in the hand for a while.

There are other examples where truly reasonable laws would pass strict scrutiny. As for what is being pushed as "common sense," I agree that most of them cannot even remotely pass.

Dreaded Claymore
01-17-2014, 8:03 PM
From another poster's response (http://www.calguns.net/calgunforum/showpost.php?p=10380422&postcount=18) to a similar question:

Rational basis (gov't pukes up some numbers, Court falls all over itself trying to make up an excuse why govt should be allowed to get what it wants). This is the lowest test...provides the least / no protection from the govt raping your rights.

Intermediate scrutiny (the "test that ate everything"?). This is the test that gets used most often, it seems. Catch-all level for anytime the Court wants more than the Govt's say-so but doesn't really make the Govt sweat it out.

Strict scrutiny. The highest level of protection from the govt. My extremely limited understanding is that to qualify, it has to be a fundamental, enumerated right that's being attacked, and it's the core of the right that's at issue and your plaintiff is pretty much spotless.

Minor quibble. If the core of the right is at issue, then no interest-balancing scrutiny is applied, because an abridgement of the core of an enumerated right is always unconstitutional. Do not pass go, do not collect $200.

The Supreme Court found that a ban on all possession of handguns was in conflict with the core of the protected right. For that reason, Scalia said, they didn't need to decide on a level of interest-balancing scrutiny at all. (That's why we're still talking about this.)

Mulay El Raisuli
01-18-2014, 8:45 AM
Minor quibble. If the core of the right is at issue, then no interest-balancing scrutiny is applied, because an abridgement of the core of an enumerated right is always unconstitutional. Do not pass go, do not collect $200.

The Supreme Court found that a ban on all possession of handguns was in conflict with the core of the protected right. For that reason, Scalia said, they didn't need to decide on a level of interest-balancing scrutiny at all. (That's why we're still talking about this.)


Like kcbrown, I also missed this post until today.

Anyway, I agree with you completely. But, the reason that all the effort in re Shall Issue CCW has failed is because concealed carry is not (and won't be) "core" to the Right.


The Raisuli

SWalt
01-18-2014, 9:59 AM
Very nice, I didn't see it either until now. Short and concise.

Just throwing this out there but I do think when you discuss 2A Strict Scrutiny it would be a service to also discuss reasons SCOTUS did leave law standing that was ruled Constitutional under rational basis, such as felons denied the right to keep and/or bear. Did they leave such laws in place because they were not the issue at hand (although they did mention them) or they saw them passing Constitutional muster under strict scrutiny while they were adjudicated under the rational basis? The legacy of these laws are at the heart of our issues. This question may muddle Tincon's post or enhance it. But it is a question that should be noted when discussing 2A Strict Scrutiny, at least in my mind.

Mulay El Raisuli
01-19-2014, 5:23 AM
Very nice, I didn't see it either until now. Short and concise.

Just throwing this out there but I do think when you discuss 2A Strict Scrutiny it would be a service to also discuss reasons SCOTUS did leave law standing that was ruled Constitutional under rational basis, such as felons denied the right to keep and/or bear. Did they leave such laws in place because they were not the issue at hand (although they did mention them) or they saw them passing Constitutional muster under strict scrutiny while they were adjudicated under the rational basis? The legacy of these laws are at the heart of our issues. This question may muddle Tincon's post or enhance it. But it is a question that should be noted when discussing 2A Strict Scrutiny, at least in my mind.


The only reason they gave was that such laws were "long standing." Which is troubling all by itself.


The Raisuli

Tincon
01-19-2014, 10:59 AM
Waking this from the dead a bit, since I didn't see this thread at all until now (I saw it now as a side effect of a search I was doing)...

This is apparently not correct. Read: Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=897360)

I've read it, interesting paper, but I disagree that strict scrutiny is not generally fatal, absent exception. Most of the cases that paper cites are either cases of statutory strict scrutiny (which SCOTUS apparently does not take too kindly to) or there was an exception. They are also almost all as-applied challenges, which I imagine played a large role.

Tincon
01-19-2014, 11:07 AM
Just throwing this out there but I do think when you discuss 2A Strict Scrutiny it would be a service to also discuss reasons SCOTUS did leave law standing that was ruled Constitutional under rational basis, such as felons denied the right to keep and/or bear. Did they leave such laws in place because they were not the issue at hand

They cannot take action on a case that is not before them. So in a case challenge the laws of DC or Chicago, they cannot strike down the felon is possession law. But that isn't to say they would if they could. Just because a law passed a less stringent standard of review previously, does not mean it would not pass a higher one. And of course, felons are denied all sorts of rights, and are specifically mentioned in Heller.

Minor quibble. If the core of the right is at issue, then no interest-balancing scrutiny is applied, because an abridgement of the core of an enumerated right is always unconstitutional. Do not pass go, do not collect $200.


It's actually possible that you are right, that's the most literal interpretation of Heller and McDonald. And it isn't without precedent, the 5tha and 6th amendment rights are treated that way. But it almost seems to much to hope for, so my argument is for strict scrutiny. But if you are correct I would be happy to be wrong.

I would guess that, e.g., a training requirement with a shall issue license to prove training as a requirement for CCW would pass. Similarly, any law against brandishing would pass, thus preventing someone from drawing a weapon just because he/she feels like carrying it in the hand for a while.

The brandishing issue comes directly under "dangerous and usual," which actually means "affrightening," which basically means brandishing. The training requirement would probably pass strict scrutiny, just because it would be the least restrictive way to protect the public from accidents.

kcbrown
01-19-2014, 11:21 AM
It's actually possible that you are right, that's the most literal interpretation of Heller and McDonald. And it isn't without precedent, the 5tha and 6th amendment rights are treated that way. But it almost seems to much to hope for, so my argument is for strict scrutiny. But if you are correct I would be happy to be wrong.


Shouldn't one argue for the categorical approach suggested by the literal interpretation of Heller and McDonald, with a strict scrutiny argument as the alternative argument? That way, you at least introduce the possibility of getting the better standard, right?

Tincon
01-19-2014, 11:27 AM
Shouldn't one argue for the categorical approach suggested by the literal interpretation of Heller and McDonald, with a strict scrutiny argument as the alternative argument? That way, you at least introduce the possibility of getting the better standard, right?

Probably. I might make that choice myself. But I don't know that anyone arguing these cases has seriously considered it, or that writing about it would be of much use.

2761377
01-19-2014, 11:36 AM
The OP identifies the problem.

Heller only specifies strict scrutiny if one is intellectually honest. Even with the precedent of Heller, SCOTUS itself could barely apply Heller to the states, winning a narrow 5-4 decision in McDonald.

Political preferences are vastly more deterministic than the Constitution when predicting a court's decision. Bottom line: None of this matters a whole lot. Sure, if we can get a miracle Court of completely honest, apolitical Justices, we're GTG, but if you think that's ever possible, I have some oceanfront real estate to sell you in Nevada.

Here in reality, we're stuck with liars like Sotomayor, who, in their Senate hearing, claim to support Heller and be pro-2A and even have an uncle in the NRA, but then vote against McDonald. :facepalm:

and, when the next vacancy is filled by a Obama or Clinton nominee (a near certainty at this point), Heller and MacDonald will both go the way of Plessy v Ferguson.

kcbrown
01-19-2014, 11:58 AM
Probably. I might make that choice myself. But I don't know that anyone arguing these cases has seriously considered it, or that writing about it would be of much use.

That alone is a depressing thought. When those who litigate on our side aren't even willing to attempt to establish the right as securely as possible, then why should we expect anything more than a caricature of a right to emerge as a result of their efforts?

Dreaded Claymore
01-19-2014, 8:31 PM
It's actually possible that you are right, that's the most literal interpretation of Heller and McDonald. And it isn't without precedent, the 5tha and 6th amendment rights are treated that way. But it almost seems to much to hope for, so my argument is for strict scrutiny. But if you are correct I would be happy to be wrong.

Well, not every gun law is going to touch the core of the protected right. DC and Chicago's bans on possession did. But concealed carry is probably not the core of the right; it's probably ancillary to the right. For things like that, there will be some level of interest-balancing scrutiny test, and it will be higher than rational basis. That's what Scalia said in the Heller opinion, anyway.

Tincon
01-19-2014, 9:59 PM
Well, not every gun law is going to touch the core of the protected right. DC and Chicago's bans on possession did. But concealed carry is probably not the core of the right; it's probably ancillary to the right. For things like that, there will be some level of interest-balancing scrutiny test, and it will be higher than rational basis. That's what Scalia said in the Heller opinion, anyway.

I don't think the "core" would be the test, that is REALLY squishy and would invite countless challenges and likely splits.

SCOTUS has actually given the categorical basis for regulations winch would not infringe: sensitive places, dangerous and unusual (scary guns/doing scary things), and typical lawful use. If the right applies outside the home (and I explained why it does in another thread) then they have to give some form of carry. They can ban OC or CCW, but not both. Even a "core" argument would support such, as self-defense is the core, not protection of the home. There is caselaw on self-defense applying equally within and without the home (see my other thread).

Mulay El Raisuli
01-20-2014, 7:16 AM
That alone is a depressing thought. When those who litigate on our side aren't even willing to attempt to establish the right as securely as possible, then why should we expect anything more than a caricature of a right to emerge as a result of their efforts?


Can't argue against that.


The Raisuli