tag:blogger.com,1999:blog-24847601.post1099015497589719028..comments2024-01-11T04:26:33.475-05:00Comments on Drifting Through The Grift: Hellergriftdrifthttp://www.blogger.com/profile/04509712527908530572noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-24847601.post-21305688872755194872008-06-27T15:52:00.000-04:002008-06-27T15:52:00.000-04:00Sorry, important but not compelling government int...Sorry, important but not compelling government interest under intermediate scrutiny. I can't type today.Pokeristahttps://www.blogger.com/profile/06707781319963324911noreply@blogger.comtag:blogger.com,1999:blog-24847601.post-36427748548296128082008-06-27T15:51:00.000-04:002008-06-27T15:51:00.000-04:00My old law professor, Randy Barnett, argues in tod...<A HREF="http://online.wsj.com/article/SB121452412614009067.html?mod=opinion_main_commentaries" REL="nofollow">My old law professor, Randy Barnett,</A> argues in today's WSJ that the review applied will be similar to that applied to "time, place and manner" restrictions on public speech--that it be narrowly tailored to serve a compelling government interest, and not merely a pretext. So, basically, intermediate scrutiny.Pokeristahttps://www.blogger.com/profile/06707781319963324911noreply@blogger.comtag:blogger.com,1999:blog-24847601.post-81424271825320137012008-06-27T13:23:00.000-04:002008-06-27T13:23:00.000-04:00"Frankly, when the court gets to specific in its t..."Frankly, when the court gets to specific in its tests and standards is when I start to worry."<BR/><BR/>Forgive the lawyers for worrying about the level of scrutiny when it might seem unimportant to you, but it is an important threshhold question in virtually all constitutional litigation. Most constitutional analysis is either conducted under strict scrutiny (i.e. the law must be necessary to achieve a compelling state interest), or rational basis review(i.e. the state must simply have a rational basis for taking the action.) There is also intermediate scrutiny, which is rarely applied and mainly only to claims of unequal treatment on the basis of sex. The level of scrutiny is usually the single ost crucial factor as to whether a particular law or action by the state will pass constitutional muster. To have no idea what level of scrutiny to apply to these cases is, therefore, a big problem.<BR/><BR/>That the court did not articulate the level of scrutiny to be applied means that almost certainly the lower court interpretations of Heller are going to be a complete mess. As Richard and I discussed in the comments to my post about <I>Heller</I>, I think the DC law would have to be upheld under rational basis review, but under strict scrutiny virtually every gun law would be unconstitutional--even the "good ones" Scalia worked so hard to exempt. <BR/><BR/>So, whether he intended to or not, I think Scalia just carved out a specialized level of scrutiny for these cases, much like the balancing test you describe, but did not provide nearly as much guidance to lower courts as he probably could have. Presumably that will come in the next test case, perhaps the Chicago case that NRA filed yesterday. <BR/><BR/>In the meantime, this little quandary will vex law clerks, judges, and law students reading this decision.Sarahttps://www.blogger.com/profile/18339673763054572203noreply@blogger.comtag:blogger.com,1999:blog-24847601.post-28125137480651049692008-06-27T10:32:00.000-04:002008-06-27T10:32:00.000-04:00How did I know you would disagree?It's brilliance ...How did I know you would disagree?<BR/><BR/>It's brilliance is two-fold. First, it finally establishes an individual right. Secondly, it establishes that individual right is not limited. It does indeed set up a test in the reasoning that both elements of the amendment must be balanced and if one goes to far to the detriment of the other, the law is unconstitutional.<BR/><BR/>Frankly, when the court gets to specific in its tests and standards is when I start to worry.<BR/><BR/>Oh, and we don't know if it applies to the states yet because it hasn't been tested in a state yet. But don't worry. Illinois and the insane Chicago ban will be next. With I predict the same result.griftdrifthttps://www.blogger.com/profile/04509712527908530572noreply@blogger.comtag:blogger.com,1999:blog-24847601.post-8108961364881164862008-06-26T15:42:00.000-04:002008-06-26T15:42:00.000-04:00For the benefit of your readers that don't overlap...For the benefit of your readers that don't overlap with Sara's blog (both of them, yes):<BR/><BR/>After reading the majority opinion, it's about 50 pages longer than it needs to be.<BR/><BR/>Holding:<BR/>1) The Second Amendment is an individual right (p.22).<BR/>2) Laws implicating the Second Amendment are subject to some unnamed level of scrutiny higher than rational basis review (pp.56-57 & n.27).<BR/>3) A law banning handgun possession in the home is unconstitutional (p.64).<BR/>4) A law banning firearms in the home capable of operation for immediate self-defense (presumably a ban on loaded firearms in the home, but the Court didn't go that far explicitly, and the DC ban required trigger locks or dissassembly in addition to keeping the gun unloaded) is unconstitutional (p.64).<BR/><BR/>The rest is arguing with Stevens and Breyer about the history.<BR/><BR/>Uninterpreted:<BR/>1) Does the Second Amendment apply against the States?<BR/>2) What level of scrutiny is appropriate?<BR/>3) Besides the enumerated permissable bans (felons, mentally ill, schools, govt. buildings), what else may be regulated?<BR/><BR/>Brilliantly explains, my ass. Wanders off in the weeds and gives little guidance is more like it.Richard Campbellhttps://www.blogger.com/profile/10196245164076003326noreply@blogger.comtag:blogger.com,1999:blog-24847601.post-49191249419439374682008-06-26T13:51:00.000-04:002008-06-26T13:51:00.000-04:00Jen, I think it would have been 9-0if the opinion ...Jen, I think it would have been 9-0if the opinion hadn't been quite so expansive on the individual right and had instead merely found the DC law to go too far. In fact, I suspect that Scalia was forced to include all that stuff about all the regulation they were NOT declaring unconstitutional because otherwise he would have lost Kennedy and the majority opinion.Sarahttps://www.blogger.com/profile/18339673763054572203noreply@blogger.comtag:blogger.com,1999:blog-24847601.post-38798968893700344842008-06-26T13:14:00.000-04:002008-06-26T13:14:00.000-04:00It is completely astonishing to me that Heller was...It is completely astonishing to me that Heller was decided 5 to 4. In fact, I made a wager that it would be either 8 to 1 or unanimous. The DC gun ban struck me as blatantly unconstitutional and as someone who considers herself in the "living document" category, I'm very interested in reading the dissent (probably should have read it before I left this comment).Jenhttps://www.blogger.com/profile/05495000058501064688noreply@blogger.com