Posted on 11/21/2007 6:16:30 AM PST by epow
I'm not a lawyer either, so my opinion is worth what you are paying for it.
My understanding is that there are three levels of protection of citizen's rights. The least protective is "rational basis" which only requires that legislation is unambiguous so that it can be clearly applied and that some reason for the legislation has been proposed. It doesn't matter at all if the rationality is flawed or wrong. The legislature is allowed to be in error and still have its laws take effect.
The highest level of review is "strict scrutiny" which applies when a fundamental right is effected by a law. Such laws must meet the standard that the law accomplishes a compelling public interest, that the law is narrowly tailored, and the law is the least intrusive way to accomplish the compelling interest.
"Strict scrutiny" is the only standard that makes sense when protecting a right of the people which is enumerated second in the Bill of Rights.
A third, intermediate scrutiny, can be applied I believe where there is a real distinction which the law might recognize despite equal protection considerations. I think such issues may typically be sex-based; for example, does a municipal building have to have the same number of toilets for men and women? There are real reasons why "equal treatment" will not result in equal opportunity.
I don't think it can be that bad.
That would be equivalent to saying, "As long as you don't completely eliminate the right, anything short of that is acceptable".
Poll taxes and poll tests were outlawed years ago because it was obviously being used as a mechanism to exclude people and not to accomplish any other compelling interest.
I would not expect a decision which treats the Second Amendment like a poor step-child of the Bill of Rights. Whatever interest DC has in regulating arms, such regulation must ACCOMPLISH a compelling interest, not just promise one; it must be narrowly tailored to accomplish that interest; and it must touch as lightly as possible on the protected right.
That means no fees. "Safety" classes must be effective and readily available. Timeliness of regulatory decisions must be as quickly as possible and must give the people the benefit of any doubt.
Denying felons guns is NOT a sufficient reason to register arms, nor to charge for background checks, nor to make law-abiding people wait to purchase arms, nor to deny arms because they may be suitable for criminal use. None of these measures can be shown to have had any beneficial effect despite decades of government abuse.
A lot of government mischief would be completely eliminated if the Supreme Court ever ruled that the requirement for serial numbers on arms is unConstitutional. We certainly don't require such a thing on books for very good reason.
It will be interesting to see if DC attempts to deny the Supreme Court's authority in this matter. That could end up with the Court itself fashioning the gun laws, if any. Since it is already illegal for felons to own guns, why register the law-abiding? Where is the presumption that the law-abiding will not abet a felony?
Not likely, IMHO, unless they reverse in whole or in part the Appeals court's ruling, declaring one or more of the the three provisions of the DC code to be a "reasonable" restriction.
Maybe even that sawed off shotgun. They just ruled that the lower court, and themselves could not rule, absent any evidence, that a shotgun having a barrel less than 18 inches in length was such a "militia" weapon.
El Gato wrote: “On this particular issue, yes there is. She’s (Ruth Bader Ginsberg) already expressed opinions indicating that the second amendment protects individual rights.”
I read some of the SCOTUS decisions but haven’t encountered any from her concerning the 2nd Amendment. You appear to have some better information, and I’m pleasantly surprised to hear it. Perhaps this decision isn’t quite the tossup I thought it would be. Thanks very much for the info.
I hate to to say this but I have to share your opinion, even some of the so-called originalists could disappoint us on this issue if they want to leave it to the states to decide. We know how states like NJ, NY, MA, IL, etc, have already decided.
Thanks for setting me straight on the whys. I am still worried.
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