Quote:
Originally Posted by ReelinRod
I was referring to the federal government primarily.
Even though no express power was granted via the Constitution the feds can argue that a compelling government interest to restrict any right exists. If government's arguments are convincing and supported it could be afforded the unenumerated power being claimed.
I could see this happening if anyone ever brings action for Title II arms; even though, as Heller recognizes machineguns meet the usefulness protection criteria, the feds could argue that NFA-34 is a legitimate exercise of power even under strict scrutiny* . . .
This after all was what Miller was all about . . . no evidence was offered to show that a " shotgun having a barrel of less than eighteen inches in length . . . is any part of the ordinary military equipment, or that its use could contribute to the common defense".
No evidence presented and the Court not looking on their own = the Court finding that the arm is -dangerous and unusual- thus government's claim of power to restrict private, individual, civilian possession and use is sustained. Had such evidence been presented the right to own would have been upheld and that part of NFA-34 would have been struck down.
--------------------- * 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.
US Legal
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In 1996, Justice Scalia provided an explanation of the Court's application of its standards of scrutiny. He said
“I shall devote most of my analysis to evaluating the Court's opinion on the basis of our current equal protection jurisprudence, which regards this Court as free to evaluate everything under the sun by applying one of three tests: 'rational basis' scrutiny, intermediate scrutiny, or strict scrutiny. These tests are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case. Strict scrutiny, we have said, is reserved for state 'classifications based on race or national origin and classifications affecting fundamental rights,' Clark v. Jeter, 486 U.S. 456, 461 (1988) (citation omitted). It is my position that the term 'fundamental rights' should be limited to 'interest[s] traditionally protected by our society,' Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (plurality opinion of Scalia, J.); but the Court has not accepted that view, so that strict scrutiny will be applied to the deprivation of whatever sort of right we consider 'fundamental.' We have no established criterion for 'intermediate scrutiny' either, but essentially apply it when it seems like a good idea to load the dice. So far it has been applied to content neutral restrictions that place an incidental burden on speech, to disabilities attendant to illegitimacy, and to discrimination on the basis of sex.
I have no problem with a system of abstract tests such as rational basis, intermediate, and strict scrutiny (though I think we can do better than applying strict scrutiny and intermediate scrutiny whenever we feel like it)." (United States v. Virginia et al. (94-1941), 518 U.S. 515 (1996))
I agree with Scalia that "strict scrutiny" as well as the other standards of scrutiny are unscientific and random. I believe they can also, as revealed in the dissents in Heller, be politically inspired in their "interpretation." And if not politically inspired, certainly bias or, simply, a different point of view can result in differing opinions and results. Which is why I don't think the Second Ammendment is "safe" from being transformed from original interpretation to some progressive, "Living Constitution" creature. If the Second Ammendment will in the future be more thoroughly reviewed, it may well depend on who sits on the court whether original interpretations will stand. And whether the idea that government's purpose, objective, or interest must be "compelling" again will ultimately be decided by the makeup of the Court. These are the kinds of judicial mechanisms that have been used to overcome originalism and textualism, and which have evolved to a great extent to do so. They are samples of evolved jurisprudence methodology that has created the "Living Constitution" and enabled progressive rule by men rather than by law.