March 27, 2013, 06:51 PM
Join Date: November 23, 2005
Location: California - San Francisco
Originally Posted by -Xero-
I didn't do a close read here, but what I see entirely ABSENT in any of these discussions is the legal premise behind Constitutional Law -- ...
Well, I certainly don't see anything germane in your post.
You might want to brush up a bit on the Constitution by having a good look at Spats McGee’s Federal Constitutional Primer
Here's roughly how things work:
- The Founding Fathers provided in the Constitution (Article III, Sections 1 and 2):
Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....
Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,...
- And thus disagreements concerning the application of the the Constitution to the resolution of particular disputes is the province of the federal courts. The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute.
- And that is no doubt what the Founding Fathers would have expected. Many were lawyers. They were familiar with English Common Law (the basis of our legal system) and that for a long time it had been customary for the courts, under the Common Law and understood the exercise of judicial power in such terms.
- Any gun control or gun ban law enacted by Congress or by any State is subject to judicial challenge on constitutional grounds. That thus becomes "a case arising under [the] Constitution" and thus as the Founding Fathers provided a proper subject for the exercise of the judicial powers of the federal courts.
- In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.
- There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues.
- There are three prongs to the strict scrutiny test, as follows:
- The regulation must be justified by a compelling governmental interest; and
- The law or policy must be narrowly tailored to achieve that goal or interest; and
- The law or policy must be the least restrictive means for achieving that interest (i. e., there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive).
- The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.
- Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.
Formerly known as fiddletown
Last edited by Vanya; March 27, 2013 at 06:57 PM.