Would SCOTUS ruling that Strict Scrutiny must be applied to the 2nd Amendment really matter?

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Aim1

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I can't recall if SCOTUS ruled that Strict Scrutiny must be applied to the 2nd Amendment but I'm sure it hasn't ruled what level of scrutiny is to be applied to the 2nd Amendment.

If SCOTUS ruled that Strict Scrutiny must apply to the 2nd Amendment however, would it even matter or would liberal courts still treat the 2nd Amendment like a 2nd class citizen and disregard it like they currently do?
 
It seems the court would apply a “strict scrutiny” test if a law violated fundamental rights guaranteed under the constitution. Your originalist wing of the Court would go this route. The liberal members might question the utility of 2A in the modern urban landscape and be moved to be restrictive of the right for what they perceive as the common good.

The strict scrutiny test is applied for 1A rights of free speech, religion, and also voting rights. It’s easy when the right of the people is not too threatening or disruptive to government.

The Chief Justice becomes the swing vote. Does he side with an originalist view of 2A as a fundamental right, or is he persuaded that it should be restricted for reasons of safety, security, or the common good?
 
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IMHO - the scrutiny issue is fun for the legally minded analyst. However, the operative principle is the judge or justices' personnel view on guns. No matter what the standard, their view will prevail and they will find past precedents, legal blather and the like to support their position.

Lawyers and judges put forth a view that they are neutral and unbiased analysts of just the law but I don't think so. History doesn't suggest that either.
 
You are basically asking the question that judicial theorists/philosophers have been asking since about the turn of the 19th century: are judges constrained?

You could spend a career asking that question and reading all the different answers that have been given. But the short version is: sort of. The judge's proclivities always matter to some degree, as do the text and the precedent. Judges do often make decisions that they feel some personal discomfort with. They don't just do whatever they feel like in general. But if it's something they perceive as being a hard/close call, then they will likely to do the thing they like best.

The more you can get the law (precedential law here) to present things as a not-close-call, then the less the individual judges' views matter.
 
It would be a good thing. But it does not appear to me that the courts see strict scrutiny in any meaningful way. Keep in mind how they have relegated the 4th, 5th, and 6th amendments to the scrap heap despite viewing them with so called strict scrutiny.
 
The level of scrutiny would be a corollary to a substantive decision invalidating (or upholding) a law alleged to violate the 2nd Amendment. As such, it would be overshadowed by the substantive ruling itself.
 
Yeah, but the ruling itself would likely be on restriction X. The question is what does that mean for restriction Y? That's where a clear articulation of the standard of scrutiny helps (doesn't conclusively predict, but it does help).
 
I don’t think it would matter.

Read Korematsu v. US

Strict scrutiny didn’t stop the government from persecuting an entire class of people based solely on race.

No matter the level of scrutiny the court uses, they can still decide whatever they want. They just will say it passes whatever level or not.

Throw in “national security” and it really won’t matter.
 
In the McDonald ruling, Alito and Thomas repeatedly stated the Second Amendment is a "fundamental right" necessary for "ordered liberty".

When one looks at the definition of "Strict Scrutiny", seems like they sent a message.

However, the Constitution is a piece of paper that has certainly been often ignored.
 
A few observances,
Footnote 4 of an obscure Supreme Court case, Carolene Products is claimed as the originator of strict scrutiny dealing with the equal protection clause of the 14th Amendment. It was aimed as a systemized form for changing the Court's jurisdiction away from economic liberty to that of civil rights and liberties and to signal lower courts what sort of cases would get greater consideration by the court. It was first used by Justice Black in Korematsu.

From Infogalactic https://infogalactic.com/info/United_States_v._Carolene_Products_Co.

"Therefore, Footnote Four outlines a higher level of judicial scrutiny for legislation that met certain conditions:
  1. On its face violates a provision of the Constitution (facial challenge).
  2. Attempts to distort or rig the political process.
  3. Discriminates against minorities, particularly those who lack sufficient numbers or power to seek redress through the political process."
Neither Heller nor MacDonald specified a test for the 2nd nor have the relatively few 2A cases since then. So we find courts all over the map over which level of scrutiny to apply to these cases.

These tests are mainly to provide a framework for lower courts, especially the appellate courts, to apply the reasoning in the seminal Supreme Court cases to similar cases from district courts. It does make it more difficult for lower court judges to do what they want absent stricter standards. Judges generally dislike being overturned by the Supreme Court (e.g. right reasoning and all of that law school socialization probably is to blame for that).

Regarding the Supreme Court itself, it has regarded any attempt by Congress to address constitutional tests employed by the Court as violating the separation of powers doctrine and as a result as unconstitutional (see Boerne v. Flores on RFRA for example). The Supreme Court itself uses or abandons constitutional tests all of the time, for example the Lemon Test which has been spottily applied in Establishment of religion clause cases but as of yet the Court has not formally abandoned. Thus, Wisco's observation applies more to the Supreme Court than to lower courts.

It is best to think of the whole scrutiny issue as a signal that the Supreme Court will pay more attention to some cases than others and a deviant lower court decision is more likely to be reversed if the case involves an issue affected by Supreme Court's strict scrutiny test.
 
If the issue is a major social cause regarding fundamental rights or in the throws of a moral panic as compared to some technical legal matter, I maintain (given human psychology), the fundamental driver of a decision is the judge or justices' world view. It overrides all the cases,tests and precedents mentioned in our learned discussions. It reminds me of the debates in economics about rational actors based on economic theory which were found not to be valid when behavioral factors were studied (and generated some Nobel prizes in economics).
 
If the issue is a major social cause regarding fundamental rights or in the throws of a moral panic as compared to some technical legal matter, I maintain (given human psychology), the fundamental driver of a decision is the judge or justices' world view. It overrides all the cases,tests and precedents mentioned in our learned discussions. It reminds me of the debates in economics about rational actors based on economic theory which were found not to be valid when behavioral factors were studied (and generated some Nobel prizes in economics).

Um, no the research into judicial behavior does not indicate that is true in all cases. In fact, behavioral analysis came later to economics than its sister social sciences which started that movement post WWII. The political attitudinal model of judicial behavior posits just what you are mentioning and proposes that in the end, the attitude of the judge/justice appears to matter most. Jeffrey Segal and Harold Spaeth produced seminal research with extensive data from Supreme Court merit decisions from decades of research that indicated this model works pretty well at the Supreme Court level--bit rusty on the exact numbers but over 80 percent on contentious votes from what I can recollect. The model does not do nearly as well on predicting unanimous or those with one or two dissenters.

But, the model relies on contested votes and does not do as well with unanimous or nearly unanimous votes on the merits of cases. It also does not predict the likelihood of the Supreme Court granting cert petitions to hear the cases nearly as well. Game theory on the other hand does pretty well at these things using a mixed model approach--e.g. political attitudes, legal considerations from socialization as lawyers, strategic considerations, workload, and so forth. This is especially true when you reach the Courts of Appeals which are the real day to day supervisors of the federal district courts and the federal trial courts themselves.

The law itself is rather conservative with a small c in that it takes a long time for courts to change course even after a seminal case occurs--e.g. Brown v. Board of Education left most schools still segregated until nearly 1970 because of the slow process in cases at the lower level often made by judges who opposed what the Supreme Court did. What finally and effectively ended segregation in education was Congressional threats to cut off money to schools that were still segregated which occurred in about 1968 or so.

The road to Brown was also lengthy and is called pattern litigation. There were a series of cases chipping away at Plessy v. Ferguson which allowed de jure segregation using the equal protection clause before Brown starting in the 1930's in the criminal justice system and then moving toward political and social rights in the 1940's for adults, and so forth. A similar pattern was used in the case of same-sex marriage advocates in undermining the legal consensus underpinning the justification for the old precedent (Nelson) dealing with same sex marriage.

Those folks such as the SAF who are pursuing increased protection from the 2A from states are doing the same thing. Ironically, the NRA has always opposed that approach and preferred the political approach. That worked until Citizens United allowed a flood of unlimited billionaire bucks from the likes of Bloomberg, etc. who hate private ownership of firearms to directly pay for political advocacy.

At the trial court level, there are a lot of variables that often have a more direct impact on a judge's decisionmaking than their political attitudes (absent a case of first impression) which has pretty much been borne out by empirical research on this level of the judiciary. Principal agent theory borrowed from economics is a better predictor of behavior leaving aside cases with no clear precedents (aka cases of first impression). The problem of unfaithful agents (lower courts) to the interests of the principals (Scotus and/or Courts of Appeal) mean that behavior on the lower court benches along with structural variables such as seniority, local social networks, prestige, workload, location of the court, and so forth can produce quite different results than strictly a political attitudinal model. See 58 Lonely Men which studied lower court behavior during the desegregation era where many district court judges had to follow Supreme Court precedent that some did not personally believe in.

The court system itself is a specialized bureaucracy focusing on resolving legal disputes and judges lack the ability to do as they like, even at the Supreme Court level, for a variety of factors that make the pure attitudinal model less useful other than predicting merit votes. A joker in the deck like Justice Powell, Justice Kennedy, and now apparently Justice Roberts who consciously acts as a swing justice can even thwart that as the attitudinal model is focused on the individual justice's votes. In a closely divided court, a swing justice voting on other grounds may tip the decision and will definitely affect the resulting opinion. Craig v. Boren and Bakke are perfect examples where Justice Powell tipped the scales based on legal considerations rather than his political preferences. Sometimes a defector from the majority coalition that is unexpected can also do the same thing with Justice Scalia often playing that role in criminal justice cases where his beliefs in textualism outweighed ideological considerations of liberal and conservative wins.

In sum, judges ain't legislators and do not behave the same way even if a judge is a committed ideologue.
 
In theory, yes. As a practical matter, probably not much. They rule the way they want, then craft a justification.
 
The test will be a case that comes to the issue of weapons and magazines bans. I cannot see the 4 anti justices accepting any kind of legalistic argument in favor of voiding those bans. I can see some 'conservative' justices wandering into the weeds and supporting them.

I suppose there is an intensity factor on the social issue. Scalia's views on sexuality has been explained by his originalist viewpoint. While we cannot raise the dead to ask, it is possible that he adopted the orginalist viewpoint on this issue as it supported his personal view points on sexuality.

Most forms of professional decision making have been shown to be influenced by psychological factors. the legal profession tries to portray themselves as immune but the factors are there. Recent studies on the impact of race, even in our times, suggest they operate - as one example. Got the reference somewhere.

We will see - I don't expect any relief from the state bans in a meaningful fashion from SCOTUS.
 
the legal profession tries to portray themselves as immune

For the most part, no, we do not. We try to portray ourselves (and judges) as consciously trying to move beyond those factors as much as possible. But I don't know anyone in the profession who contends that lawyers or judges don't have human brains and, therefore, the kinds of heuristics and other non-perfectly-rational considerations that human brains use constantly.
 
Actually, I saw that rhetoric in a book on judicial decision making. It's splitting hairs though. I agree that most honest lawyers would admit the power of heuristics and biases. Not to defame the dead, but I doubt any strongly ideologically committed judge or justice would.
 
In theory, yes. As a practical matter, probably not much. They rule the way they want, then craft a justification.

Nope, in actuality, you might actually want to read up on that as you can find in both law reviews and political science journals where researchers have analyzed thousands of court cases. The research repeatedly indicates that lower courts more or less follow Supreme Court precedent despite the judges' individual preferences for a variety of reasons. Even Supreme Court justices are constrained by first assembling a winning coalition of votes and then keeping that coalition--a justice that goes their own way usually becomes a dissenting or at best concurring justice. People are individuals and they are no more predictable in every case than the posters here.

Research shows that political attitudes of justices do predict merit votes (that is the vote for who wins or loses) at the Supreme Court pretty well, less so for Courts of Appeals, and even less for street level judges. However, when you get into whether the opinion is narrow or broad or employ bright line versus balancing tests along with other issues important to lawyers, it becomes less clear that attitudes determine actual outcomes.

What we are seeing is that the legal consensus since at least the early 1900's was to allow governments to restrict firearm ownership with even the NRA more or less agreeing until about 1968 with the Gun Control Act. Thus, the Scotus decision in Miller during the 1930's on the NFA and the odious Cruikshank decision in the 1870's effectively redefined the 2A as collective rights to have a militia was the law of the land until Heller this century. This is despite the Court's movement to broadly define all other rights and government powers to actually exceed what originally was intended at the same time. Thus, all lawyers were trained in law school to treat the 2A as an ahistorical joke and the right to bear arms as a privilege revocable by the state even to the point of effectively banning all of them as did DC and Chicago. It is no wonder that the NRA turned to political activism at the time as clearly the legal community, even many conservatives such as Warren Burger, during the 1960's through 1990's was not comfortable with the idea of the rabble being armed without the comfort of state regulation. Guns were associated with crime and terrorism for a lot of folks as polling at the time indicated.

It took roughly twenty years of concentrated Supreme Court attention to overturn segregation which only really occurred when the threat of losing funds, business opportunities, electoral victories, and civil rights prosecutions/lawsuits became possibilities for public entities fighting it. We are still in the early phases of the battle in the courts to define the 2A and cannot say how it will turn out as nothing is guaranteed. Nevertheless, the cynical or deterministic position that individual efforts are worthless in the long run and that we will fail regardless may be comforting to those individuals in the short run but pave the way for the strong man or the rule by oligarchs to destroy the republic. The powers that be promote that idea via the media, schools, etc. with such rhetoric as the right side of history. My study of history, politics, economics, and even warfare indicates the opposite, it is individuals in the end that make the difference, not the meaningless drivel of determinism. My work in state and local politics confirms this.

Instead, consider the SAS motto, Who Dares, Wins or L'audace, l'audace, toujours l'audace." by Napoleon, and later General George Patton made "Audacity, audacity, always audacity." One major problem that those favoring 2A rights are splintered and mainly distinguishes itself as a defensive movement. Those who are anti's are active all of the time regardless of whether defeat in the short run is likely. In other words, they have the audacity, we often do not. Furthermore, the defensive crouch demoralizes supporters in the long run and either promotes utopian or purist ideals in some that are counterproductive --e.g. guns for felons and the like or push to adopt ignorant tactics such as if we only explain ourselves better, were more welcoming, and make sure that we are better than that when contesting limits on gun rights. Both the purist and those who are too proud to fight and wish to concede needless grounds to the enemies of the 2A in the name of "compromise" are in the end loser strategies that are promoted by many in the "conservative media."

For example, today the media is doing their usual macabre dance over the NZ shootings and blaming the usual suspects for the usual reasons. A good offense by gun rights groups would be that a good person(s) with a gun could have stopped all of that mess and thus the greater availability of guns to good guys actually saves lives while the massacre shows the futility of trying to prevent bad guys from obtaining firearms in a world of mass smuggling of drugs, humans, and other contraband.

Instead,gun rights groups go into radio silence and issue mush mouthed platitudes of being sorry for the victims etc. instead of challenging the wrong headed policies that led to the victims being shot without challenge. It is as if we actually believe that the gun grabbers are right on some level. Folks that do not believe in their own cause deep down in their hearts will always lose in the long run whether in court, in the legislature, or in society.

The study of the French during the rise of Hitler from 1934-1939 is instructive. The notorious infighting in French politics at the time sabotaged an effective response to an identified rising danger. For example, the spending on much of the defense force's budget on the Maginot line was instructive as it was an incomplete defense barrier leaving open a broad field for German armies to outflank but lulling some French to believe in its efficacy. The French could have moved to the attack during Germany's invasion of Poland and probably forced its way through the Siegfried lines to the German detriment. The French had quite good tanks and airplanes at least as good as the Germans if not better. Instead,they let the Germans finish the Poles off, ally with the Soviet Union to protect their Eastern flank, and as a result the Allies faced much worse odds in 1940. At the actual time of the Germans invading France, the French cabinet fell apart due to the PM Reynaud wanting to fire General Gamelin, Supreme Commander of the French. He was the worthless political protege of the Defense (and former PM) minister, Daladier and did little to nothing to prepare for the German onslaught. Enough of the French in WWII, unlike 1914, essentially did not believe in defending France from the Germans was as worthwhile as preserving their individual lives or political ideologies.
 
Actually, I saw that rhetoric in a book on judicial decision making. It's splitting hairs though. I agree that most honest lawyers would admit the power of heuristics and biases. Not to defame the dead, but I doubt any strongly ideologically committed judge or justice would.

GEM, that book does not reflect the general consensus in political science since the attitudinal model of Segal and Spaeth took over in the late 1970's and 1980's and even the law reviews grudgingly went along with the attitudinal model during the 1990's as far as Supreme Court votes on merits. Even before Segal and Spaeth, Walter Murphy and folks like Ezra Pound pretty much debunked the old formalism that was prevalent in the field. I would suspect that it was an old text that emphasized institutionalism over behavioralism as formalism dominated the field until waning during the behavioralism onslaught during the 1950's.

It was when the attitudinal model was stretched to things like cert decisions, agenda setting, and decisions of lower courts that it begin to fail to be a very good predictor of individual judicial behavior. Furthermore, one problem is that behavioralists went too far in their assertions in the social sciences as far as claims and a lot of work in sociology, history, psychology, etc. and recently behavioral economics has had to be walked back to admit that people are complicated and generally there is no "one" predictive variable that explains the variability in human behavior. As the judiciary is a type of bureaucracy, there are a lot of similarities between bureaucrats and judges in their decisionmaking and one such general institutional value is that they are risk averse. Now whether risk averse individuals enter the civil service or the judiciary versus being forced by institutional preferences to conform is an unanswered question. These type of conundrums led to behavioralism's fall from grace during the mid 80's to later.

Behavioralism ran into a problem by asserting that essentially every action by individuals reflected that individual's preferences which doesn't lead to any generalizability other than individuals behave as the sum of their preferences. This is as problematic as the old view of the economic rationalizing individual where every decision is optimax and rational. This field problem in turn, has led to the adoption and reactions in the social sciences of neo institutionalism, using game theory, etc. and so forth to revisit old battles between behavioralism, rationality, and institutionalism.
 
Law reviews and PolySci journals are hardly objective observers, and research often shows what the researchers want it to show. You won’t have to look hard to find the examples.

I’ll modify my comment to this extent - if a judge has no strong opinion on an issue then yes, he/she may well follow precedent or sound and simple legal logic.

But if they do have strong feelings that they ‘know’ the right position on an issue, and evidently many do on interpreting the 2A, then forget precedent or logic. They can rule based on how they feel, then dream up their justifiction regardless of how convoluted or twisted it must be. Not always and not all, but way too much.

Start reading Circuit court and SCOTUS opinions and dissents. You’ll soon see.
 
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I’m pretty sure boom doesn’t have to “start” reviewing Supreme Court opinions.
 
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