Posted on 02/10/2016 7:16:20 AM PST by reaganaut1
In an extremely important decision on Feb. 4, the Fourth Circuit Court of Appeals reversed a lower court’s ruling in favor of Maryland’s 2013 “Firearms Safety Act.†That statute (like so many supposed gun control laws) banned a wide range of “assault weapons†and prohibited the sale of magazines that can hold more than ten rounds.
Crucially, in Kolbe v. Hogan, the majority held that courts must use “strict scrutiny†when they evaluate laws that impinge upon the Second Amendment rights of Americans. If the decision is upheld (and enemies of the Second Amendment will try desperately to get it overturned), then a great many laws that whittle away at the right of self-defense will fall.
To begin with, non-lawyers may be wondering what “strict scrutiny†means.
In litigation over constitutional rights, the level of scrutiny that a court chooses to employ is exceedingly important. Although the Constitution itself says nothing about this, the Supreme Court long ago created a dichotomy between “strict scrutiny†and lower levels of scrutiny. (It’s a bad dichotomy, since judges shouldn’t decide which rights are fundamental and which ones are relatively unimportant – but that’s an article for another day.)
When a court uses the former, the judges look very carefully at the government’s rationale for enacting a law. In a sharp essay published in National Affairs, “Assessing Affirmative Action,†Yale Law School professor Peter Schuck put it this way: “Strict scrutiny is supposed to…force reviewing courts to be rigorous, skeptical, and demanding enough to challenge the government’s premises, flush out its true motives, and ensure a tight congruence of evidence, legal categories, and policy justifications.â€
When courts employ strict scrutiny, the government has a heavy burden to show that the challenged law should stand. Quite often, it fails and the law is invalidated.
(Excerpt) Read more at forbes.com ...
I am glad to see this decision but the right to own a weapon is an inalienable right and does not come from government.
Yes, I consider ALL mainstream media to be the enemy of the Constitution.
True, but “strict scrutiny” is the best recognition of that we can hope to get from the courts. If this stands, especially if the Supreme Court agrees, it would be a huge victory.
You know why this is so big? Well, ever wonder why when obscenity laws tangle with pornographers, the obscenity laws lose? That’s because the 1st Amendment has “strict scrutiny” levels of protection.
The reason that the “stolen valor” law was overturned? Because the 1st Amendment has “strict scrutiny” protection.
If the 2nd Amendment is granted the same protection, it will be nearly impossible for the government to restrict it, because they will have to overcome a huge burden and prove a dire need for any legislation restricting the right. The courts will have to presume that ANY restriction on the 2nd Amendment is illegitimate unless the government can prove that the country won’t be able to function without that restriction.
Bloomberg doesn’t want city dwelling blacks or hispanics to even own guns, mighty WHITE of him and his gun toting security guards:-)
Great article. Encouraging!
You get it. Unalienable Rights exist, regardless of what the Government says.
That’s correct. The government and the judiciary do not have the right to give or take away our means of self defense. Even if the 2nd amendment was repealed it would make no difference we would just have to fight to keep the guns.
You are absolutely right about the importance in applying strict scrutiny to 2nd amendment cases. If the supreme court directs that strict scrutiny be the measuring stick, the 1934, 1968 and 1986 gun control acts could be in serious danger.
Exactly right. Hard to see any of them meeting the “strict scrutiny” challenges.
The country existed just fine before the 1934, 1968, and 1986 laws. In fact, it is only at present that we are returning to crime levels that existed in 1963.
Sure I do, most politicians and judges are perverts. Otherwise the 2nd would be held just as absolute but it won't.
You’re having the same problem I had: italics appear in a white font. ?
The Bilderbergers and CFR types are not going to like this.
They are already saying to one another, as one man, "This shall not stand!" To which I say, Come on, you blue-helmet wussies, molon labe!
The UN has been the scene of a continuing campaign since about 1990 to disarm the People of the United States. The instigators have been Japan and Great Britain. I don't know what is behind that, perhaps someone could direct us to an article.
Don't sell than short, though, it makes the whole thing seem more effective. The disarm the civilians thing has been going since the communists tried to influence domestic policy in the US, beginning at the end of WWII, and possibly earlier.
Recall, the first real infringements on the general population date back to the NFA of 1934. It took a while to get that through.
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