The Supreme Court Argument Was Never About Guns

I’ve been watching the wrong movie for over half a century.  The gun control argument, when it reached the Supreme Court, was never about guns.  The opinion in Bruen doesn’t deal with assault rifles versus muskets.  It deals with a pair of abstract concepts: strict scrutiny and intermediate scrutiny.  This website walks us through the concept when applied to free speech – a right listed in the first amendment.

“Justice David Souter famously wrote in his dissenting opinion in Alameda Books v. City of Los Angeles (2002), “Strict scrutiny leaves few survivors.” This means when a court evaluates a law using strict scrutiny, the court will usually strike down the law.”

So, if I look at the second amendment, under strict scrutiny, “Shall not be infringed” pretty much means exactly what it says.  The phrase “A well regulated Militia, being necessary to the security of a free State” has provided a justification for evaluating the laws based on “intermediate scrutiny.”

With the internet, the definitions are readily available:

“intermediate scrutiny is a term of Constitutional law which refers to a test used in some contexts to determine the constitutionality of a law. The challenged law must advance an important government interest by means that are substantially related to that interest in order to pass intermediate scrutiny. Intermediate scrutiny is less rigorous than strict scrutiny, but more thorough than normal review. Intermediate scrutiny is used in equal protection challenges to gender classifications, as well as in cases where right to freedom of religion and freedom of expression from government interference is involved.”

The strict scrutiny standard is the most thorough analysis. The purpose, objective, or interest being pursued by the government must be “compelling”. Also, the means to achieve the purpose, objective, or interest is reviewed to determine if it is “narrowly tailored” to the accomplishment of the governmental purpose, objective, or interest. There must not be any less restrictive means that would accomplish the government?s objective just as well. Strict scrutiny is applied in cases where there is a real and appreciable impact on, or a significant interference with the exercise of a fundamental right. The language of the court’s opinion indicates the level of scrutiny applied. If the analysis discusses a compelling interest that is narrowly tailored to achieve its goals, it is a strict scrutiny analysis.

Strict scrutiny is at the opposite end of the spectrum for the rational basis test used. Under the rational basis standard, the court determines whether there is any rational justification for the classifications created by a challenged rule, which must further a “legitimate governmental interest”. Under intermediate scrutiny, the government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest.”

Justice Clarence Thomas wrote the decision:

“the constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’ McDonald, 561 U. S., at 780 (plurality opinion). The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self-defense is no different. New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms in public.”  

The key words are ‘not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’  Like the first amendment, infringements on the second amendment are now to be subject only to strict scrutiny.  The militia clause is no longer an acceptable reason to bring in intermediate scrutiny. 

I am not an attorney.  My education on constitutional law is a single undergraduate 3 credit course taken over 50 years ago.  Still, the realization that the arguments for and against gun control were based on legal principles that were never legislated opened my eyes.  The second amendment right to keep and bear arms is now evaluated in the same manner as the other enumerated constitutional rights.

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