Rational Basis Conclusion

Joe Doakes from Como Park emails:

The Supreme Court declared the right to keep and bear arms is a fundamental right.  But we all know fundamental rights can be infringed (can’t yell fire in a crowded theater).  The question is: what’s the test to decide whether a government regulation affecting a fundamental right is valid or void?

The Illinois city ordinance banning ‘assault rifles’ is staking out a “rational basis” test.  If the regulation is rationally related to a legitimate government purpose, it stands.  That’s the test we use for zoning ordinances, or speed limits.  That’s the least protective of citizens’ rights.

In contrast, the test for freedom of speech is “strict scrutiny,” which is a much harder test for the government to pass.  That’s why a crucifix in urine, nude dancing, flag burning and Citizens United’s right to show a film critical of Hillary Clinton are all protected by the First Amendment.

These tests are all made-up rules adopted by the Supreme Court, which hasn’t stated the test it will apply to gun rights cases.  It’s absolutely critical Second Amendment supporters keep the pressure on politicians and the courts to make certain the right to defend yourself with arms is as vigorously protected as the right to defend yourself with words.

Joe Doakes

The good guys have been on a fifteen year winning streak.  Some have gotten complacent.

It’s time to change that.

7 thoughts on “Rational Basis Conclusion

  1. …make certain the right to defend yourself with arms is as vigorously protected as the right to defend yourself with words.

    Uh, have you been on a campus lately?

  2. I’ve heard some argue that the IRKBA should be subject to the strict scrutiny test.

    I disagree.

    I believe that every action of government at every level should be subject to the strict scrutiny test.

  3. I would agree that the legal limits on gun control ought to be closer to strict scrutiny, but given that gun control laws don’t work, wouldn’t that impact a serious assessment of the “rational basis” for them? If it doesn’t, you would be able to have a “rational basis” to believe that a lunch of an RC Cola and a Clark bar would be the way to achieve health and athletic greatness, no?

  4. Joe, I’m not sure if you were just giving an example of a legitimate government purpose, but your examples were not really contextually accurate. Further, it isn’t listed to restraints of “legitimate purpose”, the California decision on Gay Marraige is also a guiding principle. The point being, you cannot deny a right wihtout a societal benefit (which was the point of the Gay Marriage Ban being overturned0, so by the inverse, to deny a right to a limited few, you have to show societal benefit substantively outweighs the effect of the limitation. Not yelling “Fire” in a theatre has nothing to do with zoning laws, it has to do with the fact that your freedom of speech right is not substantively diminished by not allowing you to yell “fire’ in contrast to the harm you being allowed to do so caused. THIS is the premise of an assault weapons ban. You can achieve your right of self-defense (and the entirely made-up right to hunt) without an assault weapon and do it quite easily and well, whereas the benefit of owning an assault weapon (for safety) is dwarfed by the harm – the statistics of multi-assailant crimes where an assault weapon proved critical are nearly zero, but the incidence of deaths caused by such weapons where another weapon quite likely would have resulted in fewer deaths is quite abundant. That’s the measure of cost – benefit, and that’s the “legitimate purpose” test, not speed limits.

  5. Well said, General von Hindenburg, I mean Penigma. Somehow I think we heard your precise argument in the 1920s in Weimar Germany. Who could ever think that citizen disarmament could cause problems?

    Regarding the notion that allowing such weapons has a harm that dwarfs the benefits, statistics, please. A Department of Justice study of the 1994 ban found no evidence of any benefits. None. Zero.Zip. Nada.

  6. Bubba, I think, once again, your reply falls into the category of Godwin’s Law.

    Also, nothing I said argues that citizens will be disarmed, but your hyperbole certainly makes you look absurd on the Hindenberg and subsequent comment.

    As to the “study” how about you post it, so that we can SEE if it makes the argument you claim. With respect to the balance, given we have scant little evidence about the use of SAR’s in self-defense against multiple assailants. I’ve looked, if you can find some, post it, otherwise, you’ve just basically said, “I once read…” Even so, your study pre-dates Columbine, is 23 years out of touch, and doesn’t address the fundamental issue, which is that the utility of SAR’s when measured as mass-shootings of deaths caused vs. lives saved, don’t measure up. No study from 1994 addresses that point. I suspect you know this, yet you posted a non-sequitor anyway.

    With respect to the ACTUAL constitution, it seems a Federal Court agrees with me..


    Now, this will likely get tested by SCOTUS, and when they decide, I guess we’ll have our decision. For the time being, this is law. Whether it should be or should not be is a matter of opinion, but HARDLY an axiom, and certainly not at all about total disarmament of citizenry, dirigibles notwithstanding

  7. OK, Hindenburg, you’re saying that it’s a “Godwin” to cite the historical fact that when the victims of the Nazis were armed, it took a lot more effort to subdue them? Really? So the Warsaw Ghetto Uprising didn’t occur? Keeping troops dealing with hundreds of Jewish resistance movements instead of with the Soviets didn’t make a difference?

    I suggest you educate yourself to become smarter than a 5th grader.


    Moreover, the study was done in 2004. Even most liberal researchers know better than to assume that a study done the year a law was passed is unlikely to find any effects.



    And along those lines, the same basic principles hold as did 14 years ago. Long guns of all kinds are rarely used in crime. You want to deal with murders by gun, you’ve got to address the key drivers of these murders, which are concealable guns carried by fatherless children.

    Hence, there is no rational basis for an assault weapons ban, since it would do no good.

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