Heller Decision -- Deeper Analysis

supercat said: 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.

In applying "strict scrutiny" the burden must be as light as possible and there must be a compelling government interest served.

In apply "rational basis", I don't believe that there is any requirement that the burden be light. If the law is at all reasonable, then the judge has no choice but to instruct the jury to apply the law. "Rational basis" is so low a barrier that I don't believe that a jury is needed. We're not talking "sensible", but rather "reasonable"; as in, having a reason at all. It's a very low standard.

That is why it would be ridiculous to apply such a low standard to anything which could be termed a "right". Footnote #27 in Heller points out that laws that don't meet "rational basis" are unConstitutional because they are "irrational".

Once a law meets the standard of "rational basis", then the burden could be very high. Imagine the eco-nuts passing a law requiring people to re-paint their homes in reflective colors so as to reflect the suns energy back into space and cool the earth. I don't believe such a law would fail "rational basis" nor would the burden be judged relevant to applying the law. Even proving that global warming is not occurring or would not be affected by such a law would not affect its qualifying as "rational" since the legislature is permitted to be WRONG as long as they have a reason.

I would be curious to hear of examples of laws which have been stricken as being "irrational". A law re-defining the constant "pi" to be exactly "3" might be such a law.

,i>The fact that we have not had to take up our arms

But we have. New Orleans, 1814. Lots of folks not in any organzied militia took up their private arms, heck many of them were Frenchmen!. And kicked Redcoat assets... with the help of some Pirates exercising their RKBA, and skill with cannons. :) They supplied some of the cannons as well.

Wake Island, 1941-42. Civilian contractors, some of whom were military veterans, took up arms alongside the Marines to try to fend off the Japanese.

And those are just two examples.

One of these days some armed citizen will stop an example of Sudden Jihad Syndrome, assuming that hasn't already happened but was kept more or less quiet. If most of the action hadn't been in DC and Maryland, it might have occurred with the Black Jihadis known as the Beltway Snipers.

I would be curious to hear of examples of laws which have been stricken as being "irrational".

Unfortunately, I doubt one would find very many. The types of judges who would be prone to overrule legislatures' judgments are unfortunately those whose personal judgment is most sorely lacking.

The issue, though, isn't so much the standard that's applied as it is the application of precedent. If one court rules that 2+2 is almost 4.1, another will use that to justify its being roughly 4.25. After awhile, 2+2 is 5.

BTW, another issue that might be interesting in future cases is the fact that the sponsors of some statutes promoted the fact that such statutes would make gun ownership sufficiently difficult that few would bother. I would suggest that any such statute, regardless of what it actually does, should be presumed unconstitutional since the stated purpose is itself unconstitutional.

supercat said: "I would suggest that any such statute, regardless of what it actually does, should be presumed unconstitutional since the stated purpose is itself unconstitutional. "

I think you are correct that "capricious and arbitrary" actions can be documented for most anti-gun laws. This aspect I don't think will get much use because virtually all anti-gun laws lack a "compelling government interest" that would be necessary under "strict scrutiny".

DC provided a good laugh claiming in their arguments that their ban is a crime-fighting mechanism. One can then hardly imagine what their crime rate would be without it.

Here in Kalifornia, the process described for fashioning one of our three "assault weapons" laws was to have people look through a catalogue of guns and note the make and model of the evil-looking ones for inclusion in the list.

I can hardly wait for a judge to address the "compelling government interest" in banning a rifle because it has a bayonet lug or a plastic pistol grip. The anti-gunners have always been ignorant morons and the coming suits are going to illustrate this quite readily.

The level of scrutiny of Second Amendment restrictions doesn’t rest of footnote 27 dictum, it rests on the recognition of the right to own and carry firearms as an enumerated individual right, in the same class as the First, Fourth, and Fifth amendments.

And there’s decades of precedent establishing the level of scrutiny applied to restrictions on enumerated individual rights.

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