Constitutionalist
Regular Member
imported post
The court was very clearly hostile to the P or I route of incorporation, but very receptive to the due process route. What does this mean to the average pro-gun reader of this site? Not much.
What DOES matter is that they will incorporate the 2nd amendment against the states. And what DOES matter is which standard of scrutiny will be used to determine if local restrictions are allowable. Best way to explain this is with an example:
Say a state has a law that says you cannot possess assault weapons, and someone sues to overturn the regulation. The state must show that though the law may appear to violate the constitution, the law is needed and should be allowed because the benefit of the law outweighs the slight constitutional violation. When trying to decide the case, the court needs to have a framework to work within when determining if the law's benefit does actually outweigh the constitutional violation. So what exactly does the state have to show?
Under the most lenient form of scrutiny, the rational basis test, they only have to show their argument is rationale. We wont spend anymore time on this because no one uses this test when it comes to the 2nd amendment, and although Heller did not settle on a standard of review, it plainly ruled out the deferential rational basis test. This is the standard of review the Brady people want used.
Intermediate scrutiny. In its usual formulation, this standard of review requires the government to establish that the challenged statute serves an important governmental interest and the means it employs are substantially related to the achievement of that interest. Under intermediate scrutiny, the state
need not establish a close fit between the statute’s means and its end, but it must at least establish a reasonable fit.---This is a pretty good standard of review for us pro-gun folks, but what we really want is:
Strict Scrutiny-This is the big one, the one we really want:
First, it must be justified by a compelling governmental interest. The state must show that they have a true, compelling interest in violating a fundamental constitutional right. They have to prove that banning assault weapons will substantially reduce the number of people killed. We all know they cannot do that.
Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much, (over broad), or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored. Seeing as "assault weapons" are used in just a few percent of homicides their ban would fail as being too under-inclusive.
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. Basically, they have to show that they are violating people's rights the least way possible to achieve their goal. There is no way they can successfully argue a total ban on anything is the lease restrictive means of preventing anything.
The good news is, barring anything weird happening, we should have a winner here boys and girls and what I see happening is this:
The gun free school zones laws, both federal and state will be struck down because the government will have to show having a gun within 1,000 feet of a school is dangerous enough to violate your rights, but having a gun 1001 feet is safe. Show me the studies, show me the scientific research, show me the statistics regarding school shootings that prove 1,000 feet is the magic number. They wont be able to. But they will be able to show prohibiting a gun ON SCHOOL GROUNDS is ok.
Hope that makes things clearer.
Lastly, I want to state one thing. I am no fan of the NRA. I do not like, and was really pissed off at the way they high-jacked this case from Gura and The 2nd amendment foundation. But in the end, it will be the NRA's argument-due process, that will prevail.
The court was very clearly hostile to the P or I route of incorporation, but very receptive to the due process route. What does this mean to the average pro-gun reader of this site? Not much.
What DOES matter is that they will incorporate the 2nd amendment against the states. And what DOES matter is which standard of scrutiny will be used to determine if local restrictions are allowable. Best way to explain this is with an example:
Say a state has a law that says you cannot possess assault weapons, and someone sues to overturn the regulation. The state must show that though the law may appear to violate the constitution, the law is needed and should be allowed because the benefit of the law outweighs the slight constitutional violation. When trying to decide the case, the court needs to have a framework to work within when determining if the law's benefit does actually outweigh the constitutional violation. So what exactly does the state have to show?
Under the most lenient form of scrutiny, the rational basis test, they only have to show their argument is rationale. We wont spend anymore time on this because no one uses this test when it comes to the 2nd amendment, and although Heller did not settle on a standard of review, it plainly ruled out the deferential rational basis test. This is the standard of review the Brady people want used.
Intermediate scrutiny. In its usual formulation, this standard of review requires the government to establish that the challenged statute serves an important governmental interest and the means it employs are substantially related to the achievement of that interest. Under intermediate scrutiny, the state
need not establish a close fit between the statute’s means and its end, but it must at least establish a reasonable fit.---This is a pretty good standard of review for us pro-gun folks, but what we really want is:
Strict Scrutiny-This is the big one, the one we really want:
First, it must be justified by a compelling governmental interest. The state must show that they have a true, compelling interest in violating a fundamental constitutional right. They have to prove that banning assault weapons will substantially reduce the number of people killed. We all know they cannot do that.
Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much, (over broad), or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored. Seeing as "assault weapons" are used in just a few percent of homicides their ban would fail as being too under-inclusive.
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. Basically, they have to show that they are violating people's rights the least way possible to achieve their goal. There is no way they can successfully argue a total ban on anything is the lease restrictive means of preventing anything.
The good news is, barring anything weird happening, we should have a winner here boys and girls and what I see happening is this:
The gun free school zones laws, both federal and state will be struck down because the government will have to show having a gun within 1,000 feet of a school is dangerous enough to violate your rights, but having a gun 1001 feet is safe. Show me the studies, show me the scientific research, show me the statistics regarding school shootings that prove 1,000 feet is the magic number. They wont be able to. But they will be able to show prohibiting a gun ON SCHOOL GROUNDS is ok.
Hope that makes things clearer.
Lastly, I want to state one thing. I am no fan of the NRA. I do not like, and was really pissed off at the way they high-jacked this case from Gura and The 2nd amendment foundation. But in the end, it will be the NRA's argument-due process, that will prevail.