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 ones 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 statutes 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.
See comment# 89. With all of the other hubbub, I think we got strict scrutiny yesterday, but it was just applied to the D.C. laws in question.
You are right about the level of scrutiny being important. But Scalia expressly refrains from setting one. He refers at one point to the fact that regulation may not be arbitrary and capricious. That's a pretty low standard in and of itself. But he did not set the standard, he said the DC gun ban did not pass any available standard. I suspect not setting a strict scrutiny standard was the price of Kennedy joining the majority opinion.
Under "strict scrutiny", almost no legislation would pass muster. Under Kennedy's, every gun-grabbing legislation would be constitutional.
So the scrutiny level is a victory we still have to win.
The other victory we have to win is to get the amendment applied to the states, the way the rest of the bill of rights has been applied as against the states. As it stands now, the 2nd amendment has nothing to do with a gun-grabbing piece of legislation passed by the CA legislature. It only applies to D.C. and to federal control of firearms. The wording of the amendment is "the rights of the people shall not be infringed" not "Congress shall make no law . . . " as in the first amendment. So the second amendment seems to me to explicitly cover action by States without resorting to the 14th amendment incorporation doctrine.
The more I think about it, the more I am starting to believe that Scalia deliberately wrote poor logic that would most certainly be litigated in the future, perhaps when McCain has had a chance to replace one or two of the liberals in the court with conservatives.