scrutiny in mcDonald?


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trapperjohn
June 28, 2010, 01:17 PM
did SCOTUS give any clear guidelines at all abotu scrutiny in the McDonald decision? I could not find any real reference to the word "scrutiny" in the ruling.

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legaleagle_45
June 28, 2010, 01:48 PM
did SCOTUS give any clear guidelines at all abotu scrutiny in the McDonald decision? I could not find any real reference to the word "scrutiny" in the ruling.

Other than saying the 2nd should be treated like any other right protected by the BoR's, no. However, that tidbit is interesting. Expect laws that prohibit the exercise of the core right (self defense with arms) to be subject to strict scrutiny. Thus gun bans will be ripe for the ash bin of history, specifically AWB, but the court will probably find that full auto survives strict scrutiny.

Laws which do not prevent the exercise of the right, but merely seek to regulate the "time place and manner" of the exercise, would be subject to intermediate scrutiny. May issue is probably dead, but shall issue would probably survive...

ArmedBear
June 28, 2010, 01:55 PM
The opinion went off in another direction. We can thank Gura for that, actually. The outcome isn't exactly what he was gunning for, but it moved in a direction he might find somewhat favorable (not P&I as he wanted, but rather incorporation that's more comprehensive, less "selective" and closer to P&I in its effect).

The opinion, as well as dissents and concurrences, address incorporation in great detail. As I wrote some time back, this case is really about the 14th Amendment, much more than the 2nd. Its farther-reaching future influence will likely be on 14th Amendment jurisprudence.

So I'm not disappointed. I didn't expect scrutiny to be at issue here. The next case that goes to the Court will probably be something that demands a judgment about scrutiny, since it will challenge exactly what a "reasonable restriction" is in some way. My guess is that it will be the "Heller II" case about DC's post-Heller restrictions on handgun purchase and ownership. But that's hard to say, still.

legaleagle 45 - what Malt will you be enjoying this evening?:D

legaleagle_45
June 28, 2010, 02:20 PM
Glenlivet-- 18 Year Old:)

ArmedBear
June 28, 2010, 02:24 PM
I've got some Glenlivet Nadurra 16, but there's not a hint of peat. Seems like gunsmoke requires peat smoke, somehow...:D

Hmmm...

Enjoy!

Mike OTDP
June 28, 2010, 02:25 PM
It's worthy of it.

Personally, I think SCOTUS will not take a firearm case for several years. They are going to let the circuits handle it for a while and see if a concensus emerges.

Bubbles
June 28, 2010, 02:28 PM
The next case that goes to the Court will probably be something that demands a judgment about scrutiny, since it will challenge exactly what a "reasonable restriction" is in some way. My guess is that it will be the "Heller II" case about DC's post-Heller restrictions on handgun purchase and ownership. But that's hard to say, still.

That's quite likely considering that oral arguments in Heller II are scheduled to be heard by the DC Circuit Court of Appeals next month.

ArmedBear
June 28, 2010, 02:30 PM
Mike OTDP has a good point, though. Chicago, DC and California are in different circuits, and that's where the cases will likely be coming from. Maybe NYC and/or NY. The court could let it ride and see what the different Circuits say.

The right to a speedy trial doesn't apply to constitutional cases...:D

trapperjohn
June 28, 2010, 02:34 PM
does the fact that the court defines it as a "fundamental right" have any implications in what they think scrutiny should be? arent all fundamental rights cases dictated by strict scrutiny?

ArmedBear
June 28, 2010, 02:39 PM
Probably.

However, that doesn't mean that all gun restrictions will be struck down. Furthermore, strict scrutiny invokes a particular set of standards, that's all.

This is an interesting, quick read: http://en.wikipedia.org/wiki/Strict_scrutiny

telkontar
June 28, 2010, 02:51 PM
I think a split in the circuits will arise quickly (by Con Law standards, anyway). Circuits will slice and dice different aspects -- registration? ownerhip allowed in the home, bu tno public display or carry? hunting? All may get different levels of scrutiny in different circuits. For such a fundamental right as self-defense, the SCOTUS should have given some preliminary parameters, at least. Always sad that we are only winning 5-4 on these cases.
I find Stevens amusing that he expects the downfall of all safety based on this when so many states have Constitutional protections as well as shall-issue and slmilar laws. Some persons cannot see beyond life in the big cities and cannot envision an American exercising personal liberties to defend themselves or their families.

ArmedBear
June 28, 2010, 02:55 PM
There are some mighty big cities in places with state constitutional RKBA, and Chicago has a much uglier murder and violent crime picture than they.

telkontar
June 28, 2010, 03:00 PM
That was pary of the point, Bear. Thanks for making it clearer. Even Yahoo posters were making fun of the right to defend themselves from gang violence now that guns were "allowed" on the South Side.

ArmedBear
June 28, 2010, 03:20 PM
It's just funny, really. Chicago is a poster child for rampant violence. It's actually a lot EASIER to argue that a gun ban endangers the lives of the innocent in their own homes, than it would be, say, in Boise or some other city where people aren't afraid to go out at night. But then, here, the right to carry is guaranteed in our state constitution, and gun ownership is about as common as bicycle ownership...

Bidimus
June 28, 2010, 03:47 PM
From the decision "In sum, 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."

As the term fundamental right is well understood to require "any law restricting such a right must both serve a compelling state purpose, and be narrowly tailored to that compelling purpose." wikipedia this should make many if not most "people that own guns control" measures invalid

ArmedBear
June 28, 2010, 03:52 PM
WRT a "compelling state purpose", here's where my legal knowledge really gets sketchy, but I believe the Court has also ruled that the law need not necessarily actually accomplish that compelling purpose.

I'd love to hear a more informed opinion, like from legaleagle, but I believe that this could make it difficult to fight, say, a ban on flash suppressors or collapsible stocks, if the state could explain why it "needs" the ban -- even if the ban is ineffective in stopping crime. OTOH the same standard could be used to declare said bans to be ridiculous and arbitrary. A lot depends on the particular case, justices, and arguments. Strict scrutiny doesn't give you an easy formula for the outcome, unfortunately. It really ought to.

I mean, I wish it were not so, but consider: we're all excited about a couple of 5-4 decisions that say that the 2nd Amendment protects our RKBA (seems obvious, doesn't it?) and the the 14th applies it across the country to all governmental bodies (also quite obvious, from the text of the Amendment, and even more from its history). 5-4 in favor of the blatantly obvious? Not very reassuring.

ArmedBear
June 28, 2010, 09:42 PM
Okay, started with some Laphroig 10, a peat monster, but light-bodied. There's your gunsmoke.

Went and played fetch with the dogs in the river (it was really hot today)

Moved on to Balvenie Doublewood. Double-barreled.

cbrgator
June 28, 2010, 10:20 PM
ArmedBear,

Under strict scrutiny, the means must serve their intended ends.

ilbob
June 29, 2010, 08:10 AM
ArmedBear,

Under strict scrutiny, the means must serve their intended ends.
While true it is only part of the story. Government is very good at misrepresenting the actual intent of laws, and courts have almost always accepted what government entitites claim about them.

There are some things that will survive very easily. Hunter safety training requirements have proven to be very effective at reducing hunting deaths. They are relatively benign and don't infringe on the core right at all. No brainer.

Some kind of gun safety information might well be required to be transfered with a firearm to the new owner when one is sold. As long as the cost is minimal, it would probably pass any level of scrutiny.

Background checks for prospective buyers will probably pass any level of scrutiny.

Waiting periods won't pass anything other than minimal scrutiny.

Life time bans for violent felons -no problem. Especially if some mechanism exists to lift the ban for those who show they have become responsible citizens.

Bans for DV and TRO cases are another issue. The real problem with DV is not that there are people who are violent, but that the vast majority of these cases are in some way bogus. I think the courts are probably going to have to look at this very closely to come up with an equitable solution.

Non-violent felons will probably end up with some kind of rights restoration process once they have served their sentences.

geekWithA.45
June 29, 2010, 08:18 AM
Our own DaveMarkowitz makes the point that the repeated mentions of RKBA being a fundamental right puts it right up there with freedom of speech and religion, making it hard to apply any level of scrutiny less than strict scrutiny.

He concurs with LegalEagle take on the effects re AWB & may issue, and goes as far as to predict that the Lautenberg Amendment, which uniquely strips a fundamental right for a misdemeanor, will not survive. He also sees the end of the various "sporting purposes" tests, given that defense is central to the right.

My engineer's take on the law agrees, but as my various lawyer friends point out, the law isn't an engineering spec, it's a mystery to be divined, like the entrails of a dove.

http://blogostuff.blogspot.com/2010/06/more-thoughts-on-mcdonald-v-chicago.html

ArmedBear
June 29, 2010, 11:03 AM
Under strict scrutiny, the means must serve their intended ends.

Not quite. The means must be intended to serve their stated ends.

A couple of words add up to a HUGE difference.

About a third of challenges under strict scrutiny fail. Note that these are cases that people obviously believe they can win, or they wouldn't ever go to court.

lions
June 29, 2010, 03:43 PM
Not quite. The means must be intended to serve their stated ends.

Help me out here, for a law to serve a compelling state purpose it must be necessary or crucial. But if a law fails to serve its intended end, how can it still be considered necessary or crucial? A failed law hardly seems like a necessary law to me. But as is often the case in legal matters, I feel like I'm missing something.

ArmedBear
June 29, 2010, 03:56 PM
Here's one possible example:

The laws against marijuana are necessary and crucial to prevent the sale of marijuana.

The laws don't prevent the sale of marijuana. There is good evidence that preventing the sale of marijuana has worse consequences than allowing it.

However, judges have refrained from ruling on whether or not preventing the sale of marijuana is a good idea or a bad one, or whether the laws actually work. They have rules on whether or not the government has the constitutional authority to make and enforce the laws.

Now, if we allow courts to simply rule on whether or not the justices LIKE a law, we no longer have the rule of law.

cbrgator
June 29, 2010, 06:45 PM
ArmedBear, with all due respect I think you are incorrect, but if I am wrong, please educate me.

First, there is no fundamental right to smoke Marijuana and thus not subject to strict scrutiny analysis. Nonetheless, if the law is not effective at accomplishing its goal, it is not narrowly tailored and fails strict scrutiny.

The means must serve their intended ends. Here's why:
If the law doesn't actually advance the interest, then not having the law at all would be a less restrictive but equally effective alternative.

Thus, the law not be the least restrictive alternative and it would fail strict scrutiny.

(Plus, my constitutional law professor told me so) :)

ArmedBear
June 29, 2010, 11:25 PM
there is no fundamental right to smoke Marijuana and thus not subject to strict scrutiny analysis

Irrelevant to the question I was addressing, which was not yours.

But... It can certainly be argued that the 10th Amendment secures a fundamental right to smoke marijuana, and to do many other things, because there is nothing in the Constitution that could be rationally construed as delegating the power to regulate, control or ban them, to the Federal Government. But no doubt your con law prof would disagree, since the 9th and 10th Amendments don't exist in any legal theory, just in the Constitution, as they are quite inconvenient to those who want to interpret the Constitution as granting almost unlimited power to the government, with only a few, specific exceptions. He also most likely has been teaching that the 2nd Amendment is a "collective right" for a long time, but whatever.

my constitutional law professor told me so

In theory, he might be right...

As a non-lawyer, I am referring to actual outcomes, not legal theories. In the real world, justices can fabricate something to explain away a pretty obvious violation of a "fundamental right", e.g. "ceremonial deism". Of course, the reason for this was that it would be an expensive pain in the ass to remove "In god we trust" from everything, etc., and the justices probably figured that nobody was getting hurt, really. But that's hardly about legal theory; it's outcome-based jurisprudence, even if mosly benign.

The notion that "strict scrutiny" means that justices will err, if they must, on one side of the issue consistently, is not true in reality -- though I would certainly wish it were. Once again, "strict scrutiny" does not mean that the Justices will evaluate the actual effectiveness of a law, merely that the law's intent is as is claimed, and that it is the "least restrictive" way to address that intent, at least in theory. Of course, even that is far more subjective than anyone wants to admit.

Obviously, I would like to see strict scrutiny apply. I just don't think we should get Pollyanna about it. It's no guarantee of any particular outcome.

cbrgator
June 29, 2010, 11:42 PM
Well, you are right that exceptions like ceremonial deism can be created by justices to accomplish whatever goal they choose. But the point of my last post was to explain that, at least in theory, the means do have to serve their ends under strict scrutiny. Whether the justices abide by that rationale is a whole different story and a conversation for another day on a another forum.

Phatty
June 30, 2010, 10:08 AM
WRT a "compelling state purpose", here's where my legal knowledge really gets sketchy, but I believe the Court has also ruled that the law need not necessarily actually accomplish that compelling purpose.

With respect to gun control, the state automatically meets the first part of the strict scrutiny test with respect to every gun regulation. It is settled law that public safety is a compelling state interest. So, even if strict scrutiny is applied to gun control laws, every individual case will simply come down to whether the regulation at issue is narrowly tailored.

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