Joe Doakes from Como Park emails:

Heller and McDonald established that the Second Amendment guarantees a personal right to bear firearms, subject to some restrictions.  Good start.

All Constitutional rights are subject to some restrictions and Americans are okay with that.  Everybody knows you can’t yell “Fire” in a crowded theater (well, you can, but when you’re arrested for causing a riot, you can’t use the First Amendment as your defense).   Some restrictions are so obviously sensible nobody argues them.  But the devil being in the details, we need to know how carefully the restrictions are drawn.  The Constitution doesn’t say so the Supreme Court has interpreted it for us.

Restrictions on Fundamental Rights (such as First Amendment speech and religion) must hold up under “strict scrutiny” – there must be a compelling government interest, which the restriction is narrowly tailored to achieve, and for which no less restrictive alternative exists.  Restrictions on Sex issues (e.g. 14th Amendment sex discrimination)  must hold up under “intermediate scrutiny” – there must be an important government interest to which the restriction is substantially related. Restrictions on lesser matters (Fifth Amendment “taking” by zoning ordinance, for example) must have a “rational basis”  – the restriction must be rationally related to a legitimate government interest.

So what level of scrutiny must firearms regulations survive?  Eugene Volokh, a law professor writing in the Washington Post, explains the issue.  Personally, I think it ought to be strict scrutiny, same as other fundamental personal rights.  We don’t have a Supreme Court case that says that, yet.  That’s the coming battleground.  If we lose that, we lose the war.

Joe Doakes

There’s always one more, bigger battle.

This entry was posted by by Mitch Berg on Monday, February 3rd, 2014 at 5:38 am and is filed under War And Peace. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.