In the Washington Post story of today, is this statement, “But the majority declined to set a level of scrutiny by which judges should evaluate the constitutionality of gun restrictions that governments may set.” This shows that the battle is still not over and if the liberals win the election they will nominate more liberal justices and gut this ruling of today, because the main battle is going to be in the court’s opinion of the level of scruting the courts (federal and state) must take of any law or bureaucratic ruling that seeks to restrict the individual right to keep and bear arms.
In other words, will a future Supreme Court case decide that 2nd Amendment cases should be decided based on the basis of (1) a “strict scrutiny,” meaning any government attempt to restrict individual rights in this area is automatically to be held inherently suspect annd unconstitutional unless something like grave national security is at stake or laws and regulations that discriminate on the basis of race or spoken free speech; (2) or an “intermediate scrutiny” meaning any government attempt to restrict individual rights to keep and bear arms is to be held mostly suspect by the courts, with the government having to pass a high hurdle in order to restrict arms —like laws that discriminate on the basis of gender or symbolic free speech; (3) or an enhanced scrutiny meaning that governments have to face much less scrutiny and suspicion from the courts as they pass laws and regulations that restrict the right to keep and bear arms —like laws that discriminate on the basis of age or commercial free speech.
“We the People” won half a loaf—recognition of the individual right to keep and bear arms, but not the other half, which is the level of scrutiny by the courts over any attempt to restrict that individual right. Obviously, it should be a “strict scrutiny.” but if the liberals prevail in the presidency, Congress and eventually in the courts, they may set an individual level of scrutiny or even an enhanced level of scrutiny, thus allowing more and more restrictions by federal, state and local governments on the individual right to keep and bear arms.
Jay Madham
You made a very interesting point. Here are the comments from the decision about scrutiny that I could find using the "edit" function of my browser.
As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,27 banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.Justice Breyer moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Post, at 10. After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED(Latin for "which was to be proved." Webster's New World Dictionary of the American Language, Copyright 1964)
This is a very important point, especially for the lawyers. Correct me if I'm wrong. If I goof, tell me about it. I'm just an old student, willing to learn. IMHO, Scalia is saying the right of self defense trumps any level of scrutiny that you want to apply. Therefore, this is strict scrutiny. Scalia is smart enough not to rub their noses in it.
http://definitions.uslegal.com/s/strict-scrutiny/
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm
http://legal-dictionary.thefreedictionary.com/Strict+Scrutiny
From the last link:
The strict scrutiny standard of judicial review is based on the equal protection clause of the Fourteenth Amendment. Federal courts use strict scrutiny to determine whether certain types of government policies are constitutional. The U.S. Supreme Court has applied this standard to laws or policies that impinge on a right explicitly protected by the U.S. Constitution, such as the right to vote. The Court has also identified certain rights that it deems to be fundamental rights, even though they are not enumerated in the Constitution.
The strict scrutiny standard is one of three employed by the courts in reviewing laws and government policies. The rational basis test is the lowest form of judicial scrutiny. It is used in cases where a plaintiff alleges that the legislature has made an Arbitrary or irrational decision. When employed, the Rational Basis Test usually results in a court upholding the constitutionality of the law, because the test gives great deference to the legislative branch. The heightened scrutiny test is used in cases involving matters of discrimination based on sex. As articulated in Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), “classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives.”
Strict scrutiny is the most rigorous form of judicial review. The Supreme Court has identified the right to vote, the right to travel, and the right to privacy as fundamental rights worthy of protection by strict scrutiny. In addition, laws and policies that discriminate on the basis of race are categorized as suspect classifications that are presumptively impermissible and subject to strict scrutiny.
Once a court determines that strict scrutiny must be applied, it is presumed that the law or policy is unconstitutional. The government has the burden of proving that its challenged policy is constitutional. To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result.
Since the second amendment is now “officially” an individual right protected by the Constitution. It would seem that strict scrutiny is the only appropriate standard.