Will 14A's equal protection clause cripple gun control efforts?

[SteveM]

Last night, PBS had an in-depth discussion on the Heller arguments, featuring Marcia Coyle, legal affairs correspondent for PBS. I could not get the audio playback to work, but if I remember correctly, Coyle suggested that when the courts use a "strict scrutiny" standard to judge the constitutionality of a law, it usually means "the death knell of government regulation." Strict scrutiny grows out of the application of the equal protection clause of the 14th Amendment. Any thoughts?

See <http://www.answers.com/topic/strict-scrutiny?cat=biz-fin> for a discussion of "strict scrutiny."

[HALO141]

1. It hasn't so far.

Governments (federal, state and local) have shown a remarkable ability to interpret law and the Constitution as the see fit or even ignore them altogether.

[L1A1Rocker]

3. Gun laws have yet to be held to "strict scrutiny".

If SCOTUS rules that they are THEN you will see lots of changes.

Remember, if it was not for the "strict scrutiny" standard flag burning could be banned. But under "strict scrutiny" it is protected as free speech.

[HALO141]

4. So it is with the politicians themselves. n/t

IMHO, they should be held under the strictest of scrutiny.

[L1A1Rocker]

8. Cannot disagree with that.

[L1A1Rocker]

2. Any regulation on the 2A SHOULD be under strict scrutiny!!

Under strict scrutiny a proposed gun law would have to be proven to be beneficial. Then it would have to be proven to not place an undue burden on 2A rights. We will see an end to do nothing, feel good gun laws that do nothing but burden the law abiding.

[SteveM]

5. For legal eagles: What "lesser" standard could the Supremes use?

If they choose not to use a "strict scrutiny" standard, would they in effect chuck the 14th Amendment in its decision on Heller? Can they do this?

[Indy Lurker]

6. here's some info

http://faculty.ncwc.edu/mstevens/325/325lect03.htm

Rational Basis - Presumption of constitutionality. Government action must have a rational relationship to a legitimate government purpose.


Intermediate - Government action must directly advance substantial interests and clear governmental objectives and be no more extensive than necessary.


Strict Scrutiny - Presumption of unconstitutionality. Government action must further a compelling government interest in the least intrusive manner.

you can find a lot by Googling Level of scrutiny

http://www.google.com/search?hl=en&safe=on&q=levels+of+scrutiny&btnG=Search

[SteveM]

7. Thanks. Then 3 levels of scrutiny can be employed within the due process clause.

If the court rules there is an individual right to keep & bear, then it will apply one of these "levels" of scrutiny in accordance with the due process clause of the 14th Amendment.

I noted on the Volokh Conspiracy a discussion over the relative ignorance of some justices when it comes to gun issues. At one point Justice Breyer pointed to a Massachusetts law which forbade the storing of a loaded weapon in a building as support for D.C.'s argument that its laws were a matter of "safety," fear of fire then and crime now being essentially equated. It was then pointed out by Justice Scalia that the law was passed before the Constitution's 2A was in effect (and was in any event during "black powder" days).

<http://volokh.com/posts/1205935463.shtml>

The studied and rather pointed ignorance of guns (esp. by gun-controllers and MSM) may yet allow lawyers/judges to profit from their own errors.

Also noted, a mild gnashing of teeth that a "favorable" court ruling might rely not only on the 14th Amendment but on the notion of "incorporation," always a heat-seeking missile up a conservative's tailpipe.