Really, it’s all in the title. The panel said that the Second Amendment is entitled to strict scrutiny. They also rebuked the dissenter for suggesting that the majority bore some responsibility for future mass shootings.
This is a split with the Seventh Circuit, who had explicitly said that intermediate scrutiny was the correct standard.
Good job, Fourth Circuit! Maryland AG says he’ll appeal. Boo, Maryland AG!
In a nutshell, scrutiny refers to how strong the law’s justification must be.
For example, suppose I am aggrieved that my state’s laws punish speeding more harshly than running a red light. I argue that this treats red light runners too easily and unfairly penalizes speeders. I might sue to vindicate this view, asking the courts to overturn the laws fining speeders so harshly.
Why won’t I win? Because the courts address a law’s classification of speeders vs red light runners very deferentially, asking only if the legislature could have discerned a rational relationship between the law and a legitimate government interest. That standard, “rational basis,” is the lowest, most deferential level of scrutiny.
In contrast, strict scrutiny is the most exacting standard. To pass strict scrutiny review, a court must determine whether the law is narrowly tailored to achieve a compelling government interest.
Rather than go through a detailed explanation, I note that this language stems from the 2008 Heller decision. It is thoroughly explained there. The 4th circuit merely adopted existing precedent with the “dangerous and unusual” criteria.
I’ve been harping on the conjunctive “and” for years.
Are there any rights explicitly guaranteed by the constitution that DON’T need to pass strict scrutiny? Without giving it a great deal of thought, my first reaction would be: Any right explicitly guaranteed by the constitution better damn well deserve strict scrutiny! After all, what the hell do we have a constitution for, if not to limit the powers of the federal government?
n.b.: I’m not a 2nd amendment defender, and would just as well see it end up in the dustbin of history. But as long as it’s still there, in the constitution, I don’t want to see it treated as if it were already in said dustbin.
Levels of scrutiny are determined by the magnitude of implication of the right. Even the 1st doesn’t enjoy strict scrutiny in all aspects (content neutral for example).
Thank you for the explanation. Like John Mace my first reaction would be concern if I were to learn that all constitution matters were not treated with strict scrutiny.
Incorrect. “Expressing much in few words” is not the same as " comprehensive, full, complete, minute, particular, specific, extensive, exact, thorough, meticulous, exhaustive, all-embracing, itemized, encyclopedic, blow-by-blow".
Now that I’ve thought about it some more I realize “cursory” would have been a better choice for me to have used, “cursory” being closer than “concise” to “no explanation.”
I recommend you read the full Heller opinion if you are interested in this topic. It is no virtue to be ignorant of the controlling legal precedent on this topic.
Levels of scrutiny are determined by the magnitude of implication of the right. Even the 1st doesn’t enjoy strict scrutiny in all aspects (content neutral for example).
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Can you clarify the “content neutral” aspect? I would expect that any infringement on political speech would have to pass strict scrutiny, no? I’m not talking about issues of time and place, but political content.
Can you clarify the “content neutral” aspect? I would expect that any infringement on political speech would have to pass strict scrutiny, no? I’m not talking about issues of time and place, but political content.
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I’m on my phone so I’ll respond later if the question is till outstanding. The wiki article on scrutiny has many examples.
