So what level of scrutiny did Heller establish? If any.

[Hoopla Phil]

We all know that Heller found the right to arms a fundamental right. We also know that fundamental rights are assigned a Strict level of scrutiny but the court never came right out and said that - or did they? This is a very interesting footnote I came across in Heller while rereading it again.

27 JUSTICE BREYER correctly notes that this law, like almost all laws,
would pass rational-basis scrutiny. Post, at 8. But rational-basis
scrutiny is a mode of analysis we have used when evaluating laws
under constitutional commands that are themselves prohibitions on
irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553
U. S. ___, ___ (2008) (slip op., at 9–10). In those cases, “rational basis”
is not just the standard of scrutiny, but the very substance of the
constitutional guarantee. Obviously, the same test could not be used to
evaluate the extent to which a legislature may regulate a specific,
enumerated right, be it the freedom of speech, the guarantee against
double jeopardy, the right to counsel, or the right to keep and bear
arms. See United States v. Carolene Products Co., 304 U. S. 144, 152,
n. 4 (1938) (“There may be narrower scope for operation of the presumption
of constitutionality rational-basis review] when legislation appears on its face to be within
a specific prohibition of the Constitution, such as those of the first ten
amendments. . .”). If all that was required to overcome the right to
keep and bear arms was a rational basis, the Second Amendment would
be redundant with the separate constitutional prohibitions on irrational
laws, and would have no effect.

http://www.scotusblog.com/wp-content/uploads/2008/06/07-290.pdf

While there still is no declaration of Strict Scrutiny the key phrase is "be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear
arms." This equates the 2A with other fundamental rights that are evaluated with Strict Scrutiny.

So what do you scholars have to say?

[OneTenthofOnePercent]

1. "So what do you scholars have to say?" ...

From my cold dead hands :smoke:

[RandomThoughts]

2. LOL

I laugh at that comment, who would give up their gun just because they got cold.

And I am still due beer and travel money.


Although sharing guns and ammo with experts, is another story.

[OneTenthofOnePercent]

3. Beer and travel money? Please elaborate.

[RandomThoughts]

6. Explained that in 1000s of posts.

If they were blocked from you seeing them, then the people blocking them take your blame on that issue. And they are responsible more on that issue.

[Nuclear Unicorn]

4. .

If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.

I can't help but think that is the motivation behind all the "reasonable restriction" pleadings that are made manifest in virtually every thread here.

Deem it "reasonable" so conversely any complaint becomes de facto unreasonable and to be dismissed out-of-hand, no debate allowed since there is no point reasoning with an unreasonable opponent.

[elleng]

5. 'Strict scrutiny' connotes 'compelling governmental interest,'

for everyone's interest.

[Hoopla Phil]

7. You only mentioned one of the three prongs for legislation to pass Strict Scrutiny

And botched it's definition at that.


First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.

Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this 'least restrictive means' requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.

http://en.wikipedia.org/wiki/Strict_scrutiny

[Nuclear Unicorn]

8. But does "compelling government interest" also reflexively include regulation

"Strict scrutiny" could also say, "We looked at it and we're cool with things being fairly unrestricted."

[Hoopla Phil]

9. He botched the definition and only mentioned one of the three

prongs Strict Scrutiny must meet. Look at my response to his post.

[elleng]

12. Means that the governmental entity must demonstrate a

compelling interest to justify the 'restriction,' sometimes its 'regulation,' sometimes its prohibition.

The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.
Finally, the law or policy must be the least restrictive means for achieving that interest.

The first and most notable case to apply strict scrutiny and find the governmental actions valid was Korematsu v. United States (1944), in which the Supreme Court upheld racial-based curfews of Japanese Americans during World War II.

[Callisto32]

14. Actually, It DEnotes compelling government interest.

It denotes that the state action, to be valid, must serve a compelling government interest, and be the least restrictive means to meeting that interest.

What the heck does that mean? I've had a dozen smart law professors try to teach me, and they all admit "I have no idea, and neither does the court." Welcome to the wonderful world of constitutional interpretation.


P.S.
I think you mean "conflates?" This is an important distinction, so I am not just trying to be a language Nazi.

[elleng]

16. Confusion among many re: connote and denote.

Connote is a verb used to suggest or imply an additional meaning.

Denote is a verb used to refer to an actual, primary, and specific meaning.

http://www.towson.edu/ows/connote.htm

I do NOT mean 'conflate,' as 'bring together, confuse.'

'Compelling government interest' is amplified/grows/changes with each case. I am an attorney, and have no problem with the suggestion that constitutional interpretation grows and changes.

Denote might have been a better term, but as you and your law professors probably see, each case demands a specific application of the term; there is NO black and white, in this respect.

Thanks for your thoughtiness!

[Callisto32]

17. Well, I = Not an attorney...yet.

Taking the PA bar in July. Yeah, I'm stressin'.

Thanks for the reply.

All clear, sir/madam.

[elleng]

18. Good luck/break a leg!

Rule #1, first impression/answer probably correct, go with it.

#2, Rely on your own good judgment.

#3, breathe!

[X_Digger]

10. Looks like rational is out..

Volokh had a good article on it- http://volokh.com/2010/06/28/mcdonald-v-city-of-chicago-and-the-standard-of-review-for-gun-control-laws/

Also, the comments lead to some good other discussions.

[Hoopla Phil]

11. Most definitely. There still is intermediate level but what's really

got me thinking Strict is the comparison of the right to keep and bear arms with other rights that are evaluated under strict scrutiny.

Thanks for the link, I'll check it out.

[X_Digger]

13. Nod.. compare to..

Talley v California, Cantwell v Connecticut

[Callisto32]

15. Rational Basis may be the most entertaining "test" employed by the SCOTUS.

As far as I can tell it means "if the government egghead can make an argument with a straight face, the .gov wins."