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**Frank Ettin** · June 28, 2010, 08:51 PM

Just over two years ago, the debate was still open about whether the Second Amendment describes an individual or a collective right. The Supreme Court decision in Heller settled that and confirmed that the Second Amendment describes an individual right.

Until shortly after 10:00 am, EDT, this morning, whether the Second Amendment applied to the States was still an open question. In 1833 the Supreme Court of the United States decided that the Bill of Rights did not apply to the States (Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833)). In United States v. Cruikshank, 92 U.S. 542 (1876), the Supreme Court expressly found that neither the First Amendment right of assembly nor the 2nd Amendment applied to the States. But beginning in the latter part of the 19th Century, the Supreme Court began to apply the Bill of Rights in a piecemeal fashion to the States through the 14th Amendment under a legal doctrine known as incorporation. So until this morning, the Second Amendment did not apply to the States.

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 at least the most draconian state restrictions on the RKBA.

It has long been settled law 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, we have some reason to hope that the highest level of scrutiny, "strict scrutiny" will apply. Strict scrutiny has thus far been the standard applied to any regulation of a fundamental right enumerated in the Bill of Rights.

There are three prongs to the strict scrutiny test, as follows:

[1] The regulation must be justified by a compelling governmental interest; and

[2] The law or policy must be narrowly tailored to achieve that goal or interest; and

[3] 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, government will at least be able to make its pitch that the regulation challenged satisfies the test. Some will, and some will not. I suspect that now the strategy will be to go after the ones most likely to fall, so as to continue to build a body of pro-RKBA precedent.

My best guess as to how litigation of some of the current regulation of the RKBA will shake out over the next few years:

* Complete bans on carrying guns will fall.
* Laws requiring a permit to purchase, own or carry, if issued on a "may issue" basis or subject to onerous conditions or restrictions, will fall.
* Laws requiring a permit to carry a gun in public will survive, if permits are "shall issue." Laws generally requiring some form of background check and/or some level of training or demonstration of proficiency and knowledge of the rules will survive.
* The "prohibited person" provision of the GCA of 1968 will survive.
* The NFA will survive. The Hughes Amendment closing the full auto registry will also probably survive.
* "Safe gun" lists like those in California and Massachusetts, high capacity magazine bans and AWB based on cosmetic characteristics may well fall, but it's not a sure thing.

In short, adults who are not "prohibited persons" under 18 USC 922(g) will probably be able to buy and own most types of guns, other than fully automatic guns, with minimal folderol. If they want to carry those guns in public, loaded for personal defense, there will be a way for them to do so; but the State will be able to require that as a condition of carrying they (1) get a permit, available on a "shall issue" basis; and (2) demonstrate some reasonable level of proficiency, the ability to safely handle a gun, and some at least basic knowledge of the law relating to the use of force in self defense.

June 28, 2010, 08:51 PM	#71
Frank Ettin Staff Join Date: November 23, 2005 Location: California - San Francisco Posts: 9,471	Just over two years ago, the debate was still open about whether the Second Amendment describes an individual or a collective right. The Supreme Court decision in Heller settled that and confirmed that the Second Amendment describes an individual right. Until shortly after 10:00 am, EDT, this morning, whether the Second Amendment applied to the States was still an open question. In 1833 the Supreme Court of the United States decided that the Bill of Rights did not apply to the States (Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833)). In United States v. Cruikshank, 92 U.S. 542 (1876), the Supreme Court expressly found that neither the First Amendment right of assembly nor the 2nd Amendment applied to the States. But beginning in the latter part of the 19th Century, the Supreme Court began to apply the Bill of Rights in a piecemeal fashion to the States through the 14th Amendment under a legal doctrine known as incorporation. So until this morning, the Second Amendment did not apply to the States. 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 at least the most draconian state restrictions on the RKBA. It has long been settled law 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, we have some reason to hope that the highest level of scrutiny, "strict scrutiny" will apply. Strict scrutiny has thus far been the standard applied to any regulation of a fundamental right enumerated in the Bill of Rights. There are three prongs to the strict scrutiny test, as follows: [1] The regulation must be justified by a compelling governmental interest; and [2] The law or policy must be narrowly tailored to achieve that goal or interest; and [3] 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, government will at least be able to make its pitch that the regulation challenged satisfies the test. Some will, and some will not. I suspect that now the strategy will be to go after the ones most likely to fall, so as to continue to build a body of pro-RKBA precedent. My best guess as to how litigation of some of the current regulation of the RKBA will shake out over the next few years: * Complete bans on carrying guns will fall. * Laws requiring a permit to purchase, own or carry, if issued on a "may issue" basis or subject to onerous conditions or restrictions, will fall. * Laws requiring a permit to carry a gun in public will survive, if permits are "shall issue." Laws generally requiring some form of background check and/or some level of training or demonstration of proficiency and knowledge of the rules will survive. * The "prohibited person" provision of the GCA of 1968 will survive. * The NFA will survive. The Hughes Amendment closing the full auto registry will also probably survive. * "Safe gun" lists like those in California and Massachusetts, high capacity magazine bans and AWB based on cosmetic characteristics may well fall, but it's not a sure thing. In short, adults who are not "prohibited persons" under 18 USC 922(g) will probably be able to buy and own most types of guns, other than fully automatic guns, with minimal folderol. If they want to carry those guns in public, loaded for personal defense, there will be a way for them to do so; but the State will be able to require that as a condition of carrying they (1) get a permit, available on a "shall issue" basis; and (2) demonstrate some reasonable level of proficiency, the ability to safely handle a gun, and some at least basic knowledge of the law relating to the use of force in self defense.