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To: publiusF27
"Could 922 (o) survive a “strict scrutiny” test? "

True. The test would change from "rational basis" to "strict scrutiny" if the RKBA is declared to be a fundamental individual right.

I don't think 922(o) would be affected under that new test, but the silly federal Assault(-style) Weapons Ban couldn't survive. Then again, it has already expired, so that's a moot point. If the second amendment remains unincorporated, states are free to pass their own AWB's under the rational basis test.

This does lead to two questions. Can the RKBA be declared an individual right, but not a fundamental individual right? If the U.S. Supreme Court finds that the RKBA is a fundamental individual right, must the states also protect it (ie., incorporation)?

The 5th amendment says that for capital crimes "a person" must be charged by a Grand Jury. Certainly this is an individual right - it says "a person". Is it fundamental?

The reason I ask is that the Grand Jury Clause of the 5th amendment is not incorporated. States are not required by the 5th amendment (though I believe some do, sometimes) to convene a State Grand Jury in all capital crime cases.

1,065 posted on 11/17/2007 6:24:22 AM PST by robertpaulsen
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To: robertpaulsen
This does lead to two questions. Can the RKBA be declared an individual right, but not a fundamental individual right? If the U.S. Supreme Court finds that the RKBA is a fundamental individual right, must the states also protect it (ie., incorporation)?

I don't see why not, but then, I don't see why the 5th amendment clause you mentioned shouldn't be incorporated.
1,070 posted on 11/17/2007 6:50:26 AM PST by publiusF27
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