Posted on 07/02/2008 4:04:33 AM PDT by Joe Brower
“The core issue of “judicial scrutiny” is now established — better than we had dreamed — in what will be known as Famous Footnote #27 (p56). “
Prior to the footnot, Scalia slams the idea of using a footnote to establish legal precedence.
He stated his opinion, IOW, in the footnote, but made sure it was debateable.
It’s not the footnote that establishes legal precedent, it’s the fact that the First Amendment is recognized as an enumerated individual right.
Concur - but the author of this piece didn’t say that.
"25 Miller was briefly mentioned in our decision in Lewis v. United States, 445 U. S. 55 (1980), an appeal from a conviction for being a felon in possession of a firearm. The challenge was based on the contention that the prior felony conviction had been unconstitutional. No Second Amendment claim was raised or briefed by any party. In the course of rejecting the asserted challenge, the Court commented gratuitously, in a footnote, that “[t]hese legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller . . . (the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’).” Id., at 65–66, n. 8. The footnote then cites several Court of Appeals cases to the same effect. It is inconceivable that we would rest our interpretation of the basic meaning of any guarantee of the Bill of Rights upon such a footnoted dictum in a case where the point was not at issue and was not argued."
You see? This preceeds the scutiny footnote (27).
Bookmark for further study
The disparagement of “footnoted dictum” no more disparages footnotes per se as precedent than the disparagement of “dictum” disparages judicial opinions in general.
I read that twice, then I printed it out and hung it on my wall.
I think this is the important part: “It is inconceivable that we would rest our interpretation of the basic meaning of any guarantee of the Bill of Rights upon...”
Did Heller argue scrutiny?
I can point out a few spots in Heller where it appears that Scalia laid a few bear traps and land mines for the anti-RKBA lawyers to blunder into, and that appears to be one of them. Baited hook, as I see it.
BTTT
I hope you are correct, but I think the issue will be raised.
And the ninth will rule the wrong way, of course.
So back to the USSC it will go ... eventually.
"... If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect."
It seems to me that this is the majority in Heller establishing 'strict scrutiny' for the 2nd Amendment.
Probably sooner than later, I bet.
What I wonder now is if the 5th Circuit Court will beat the 9th to the steps of the US Supreme Court, or that a future decision by the 9th will not be reviewed en-banc and allowed to go to the high court as it stands. If three judges on the 9th hear a 2nd Amendment case and rule in the way that the dissenters did in 'US v. Stewart' -- and the decision is not reviewed 'en banc' because the 9th has no stomach for it -- then we'd have two circuit courts concurring with 'strict scrutiny'.
Don't forget that in Stewart the 9th Circuit court ruled against the respondent by acknowledging the arguments of former US Solicitor General Paul D. Clement.
... The very same US Solicitor General Paul D. Clement who argued for the government against Dick Heller and failed.
Good quote. The grabbers can't allow a distinction between a firearm in the hands of a responsible law abiding person and a firearm in the hands of a violent felon. Their bogus arguments couldn't stand up.
Why people think this administration is “strict constructionist”, I will never figure out.
I think the point is that scrutiny was argued, but it wasn't relevant.
DC I think covered all bases, arguing that, even if there is a right, they should be able to enact "reasonable regulations".
I have pointed out in the past that the phrase "reasonable regulation" is virtually identical to "rational basis" level of scrutiny. That level only requires that there be a reason for a law, that the law be unambiguous, and that there is some connection, however slight, between the law and the reason. Anything less than this and one can say that the law is "irrational", meaning that it lacks reason and Courts have found such laws unConstitutional, regardless of their scope.
What this means is that the right to keep and bear arms, being a specific, enumerated right, could NEVER be subject to "reasonable regulation". I don't know enough about the term, "intermediate scrutiny", so I can't comment on when such a concept could apply.
By avoiding any statement specifically mandating a level of scrutiny, the Court seems to be downplaying completely the whole scheme of suggesting that one can find "compelling government interest" to violate a specific, enumerated right. I think Roberts expressed a desire to avoid inventing "schemes" which suggest how future case would be decided.
All of the ennumerated rights in the BOR seem to require strict scrutiny, from what I read.
Grand Slam!
IMHO, one thing that needs to happen, on a broad range of subjects, is explicitly allow jurors some authority to decide "reasonableness". While it should be still possible for a judge to categorically forbid the enforcement of a statute that he finds poses an unreasonable burden upon people, it should also be possible for defendants to argue as an affirmative defense that compliance with rules would have been unreasonably burdensome at least in their own case.
A judge, in deciding whether a government rule or action is reasonable, will often implicitly ask the question of whether there is any way the rule or action could be construed as reasonable. If it could be construed as reasonable, it will be. I would expect a jury would be more likely to ask a different question: is the rule or action in fact reasonable. A judge might decide an action which inconveniences hundreds or thousands of ordinary people is "reasonable", but a jury of those apt to be inconvenienced would not be so inclined.
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