Posted on 07/15/2008 12:23:50 PM PDT by JZelle
I did and I will re-read them. Is there something specific for which I am looking?
25 ... 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.
27 JUSTICE BREYER correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. Post, at 8. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553 U. S. ___, ___ (2008) (slip op., at 9–10). In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to
evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U. S. 144, 152, n. 4 (1938) (“There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments. . .”). 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.
The first footnote suggests that "dicta" shouldn't be used in a case where the point wasn't at issue and hasn't been argued. I don't know that this indicates that the dicta in Parker are applicable still or not. Certainly the Parker Court thought that "strict scrutiny" was an issue and DC had an opportunity to argue that "reasonable regulation" was permitted, even if there was an individual right.
The second footnote simply states that laws which don't even pass "rational basis" (which is just another way of saying "reasonable regulation") are therefor "irrational" and are never allowed, whether impacting protected rights or not. The statement that some higher level of scrutiny is demanded for Second Amendment rights is not equivalent to the Parker Decision that "strict scrutiny" is required.
Despite these two footnotes, I think the question still remains, to what extent do the findings in Parker remain precedential within the DC Circuit? And even more interesting, to what extent does the "affirm" in Heller make the findings in Parker precedential throughout the nation?
Footnote 25 seems to imply that you can’t trat a footnote as part of decision.
Then, in the brief, it says “The DC law is unconstitutional under any level of scrutiny.” (paraphrased)
Finally, footnote 27 seems to equate the 2A to the other enumerated rights - all of which require strict scrutiny.
QED, one would believe 2A requires strict scrutiny.
BUT, you can’t rely on a footnote...
Clever, isn’t it? Scalia seems to want the lower courts to fight over it.
Oh - and I think Parker remains precedent in DC, but not nationwide.
I didn’t know that, but it makes sense.
We affirm the judgment of the Court of Appeals.
It is so ordered
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