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February 5, 2008

What might Second Amendment strict scrutiny mean for strict gun laws?

As detailed in this article in today's Washington Post and this post at SCOTUSblog, attorneys for respondent Dick Heller filed this brief in the Supreme Court assailing the constitutionality of DC's gun restrictions under the Second Amendment.  Among many interesting aspect of the brief is a section calling for the "highest level of scrutiny for regulations implicating Second Amendment rights."  Here are some intriguing (and puzzling) excerpts from this part of the brief:

The Second Amendment has the distinction of securing the most fundamental rights of all — enabling the preservation of one’s life and guaranteeing our liberty. These are not second-class concerns. .... If a gun law is to be upheld, it should be upheld precisely because the government has a compelling interest in its regulatory impact.  Because the governmental interest is so strong in this arena, applying the ordinary level of strict scrutiny for enumerated rights to gun regulations will not result in wholesale abandonment of the country’s basic firearm safety laws.... The prohibition on possession of guns by felons, 18 U.S.C. § 922(g), and the requirement that gun buyers undergo a background check for history of criminal activity or mental illness, 18 U.S.C. § 922(t), would easily survive strict scrutiny.

So, according to the respondent in Heller, the Second Amendment secures "the most fundamental rights of all," namely "preservation of one’s life."  And yet, only a few sentences later, the respondent in Heller asserts that any and all felons — including Martha Stewart and Lewis Libby and Lil Kim and Michael Vick (but not Wesley Snipes) — can be entirely prohibited from securing this fundamental right to the preservation of their lives.  Hmmm.

Some related posts on jurisprudential challenges in the Heller Second Amendment case:

February 5, 2008 at 09:21 AM | Permalink

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And yet, only a few sentences later, the respondent in Heller asserts that any and all felons — including Martha Stewart and Lewis Libby and Lil Kim and Michael Vick (but not Wesley Snipes) — can be entirely prohibited from securing this fundamental right to the preservation of their lives.

They can all afford to hire bodyguards. Wesley Snipes doesn't need guns anyway.

Posted by: | Feb 5, 2008 10:54:00 AM

Shorter respondent: "I do not think that Amendment means what the NRA thinks it means."

Posted by: David in NY | Feb 5, 2008 10:58:38 AM

But voting rights seem pretty fundamental and we take those away from felons. Care to explain the difference?

Posted by: YesBut | Feb 5, 2008 11:50:04 AM

The Heller brief does exactly that, YesBut, though I personally am more troubled by denying the vote than denying guns to those who've already served their time. That said, no felon trying to vote ever gets 10 years for this crime, though many felons get that and more for having a gun.

Posted by: Doug B. | Feb 5, 2008 12:10:23 PM

Does the respondent's argument support the 2nd Amendment rights of children and loved ones of sex offenders to protect themselves against the likes of Bikers Against Child Abuse?

Posted by: | Feb 5, 2008 12:38:17 PM

There are other serious issues beyond felon in possession laws. Conditions of probation for misdemeanants, for example (in CA's Eastern District a prohibition on possession of firearms is a typical restriction for anyone convicted of any misdemeanor). In terms of substantive criminal law, assault weapon bans in the various states (assuming incorporation). The SCOTUS would have to craft up a "reasonableness" review standard, or render strict scrutiny meaningless. If they apply strict scrutiny gun advocates will have handed the courts, legislatures and presidency to a party that supports gun control for the next twelve years.

Posted by: Alec | Feb 5, 2008 7:35:04 PM

Well, the only thing between a gun and an owner is a background check (suposed to be anyways), and a computer generated report isn't going to give any special treatment to the person trying to buy a gun.

Posted by: Barry | Feb 6, 2008 10:14:12 AM

I just recently found that there is a way for someone who has been convicted of a felony to apply to the ATF to request restoration of gun priviledges(18 U.S.C.925.C).However since October 1992 congress has prohibited the ATF from spending money to handle such applications.The ATF will send you a explanation they cannot process because of a lack of funds. Does anyone else find this outrageous?

Posted by: Gary Holt | Feb 7, 2008 9:30:49 AM

I am absolutely astounded that an important Constitutional Right is about to be historically affirmed and yet simultaneously eviscerated by another muddled Supreme Court ruling. It seems that just about everyone, including most anti-gunners' are grudgingly conceding the historical fact that the People refers to you and me (and not government soldiers). Yet to read all the commentary FOR the Individual Rights view, I can't help but notice that 'shall not be infringed' doesn't seem to be standing in the way of allowances for gun restrictions that the government deems reasonable. To be intellectually honest, exactly how could the Framers have been any more clearer on the subject of Government sponsored gun-control?

For God's sake, America amend the Constitution if you don't like something about it!

Posted by: David M. Bennett | Feb 26, 2008 10:43:11 AM

Or Movant’ life as a disabled person has less value than non felon or felons who committed a violent Crime. One could than reason Movant should not have any protections per the BILL of Rights

Posted by: doc | Nov 7, 2008 1:09:05 AM

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