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Originally Posted by Brian
The standard litmus test is:
1. Does the government have a compelling interest in creating the law?
2. Is the statute as "narrowly tailored" as possible to meet the compelling interest?
3. Are there less obstructive/restrictive/intrusive means of accomplishing the same objective?
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Not quite. there is a subtle distinction in what Strict Scrutiny actually looks at:
- Does the government have a compelling interest in creating the law?
- Is the statute "narrowly tailored" to achieve the governments objective?
- Are there less restrictive means to accomplish the same goal?
Fact is, the definition above can actually be stated as:
- Does the government have a compelling interest in creating the law?
- Is the statute "narrowly tailored" to achieve the governments objective?
- Are there less restrictive means to accomplish the same goal?
Strict scrutiny is often used to determine laws that restrict suspect classes or abridge fundamental rights (whether in the Constitution or not).
If the court finds that the answer to the first question is, "yes," then the court will ask the second question. If that question is also answered, "yes," the court will then take up the last question. For a statute to survive at this point, the answer must be, "no."
Remember, the court is not looking for the "least" restrictive means, only a "less" restrictive means.
JimDandy, right now the court cases are looking for an answer to the question; Is the right to keep and bear arms for self-defense a fundamental right,
both in or out of the home.
The whole "assault weapons" bans is an entirely other question and has only a small relation to the answer of the question above. Fact: If the answer to that question is, "yes," then the questions of the types of arms protected becomes much more likely to be resolved in our favor.
This whole "militia" concept can be used to side-track the real issue, before the court lays down its rule. Granted, we are close to resolving that first question. Perhaps this is why the move by the anti-gun people are now pushing the bans.
Getting them (the bans) in and on the books now, will make our fight a little harder and definitely longer.