Quote:
Originally Posted by detbuch
I believe that the second quote: "Governments can only claim power to restrict "dangerous or unusual arms" is referring mostly to state governments since the Federal Gvt is already presumed, via the Second Ammendment and the Constitution's silence, to have no interest in private ownership of arms.
|
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