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Old February 8, 2011, 07:42 PM   #3
Al Norris
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Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
Certainly Jack.

Judicial Scrutiny encompasses a means by which the Courts view the constitutionality of a legislative act (law). While I am not an attorney, I believe the following is more or less on point.

Laws that are challenged on the basis of constitutionality are reviewed under 3 general forms of what is termed, Judicial Scrutiny: 1)Strict; 2)Intermediate or Heightened; and 3)Rational Basis. With Rational Basis being the lowest form, and one in which most laws will pass review. So let's take them in ascending order.

In the application of rational basis, the Courts start with a strong presumption that the law (or policy) is valid. A plaintiff must prove that the law is arbitrary or capricious and has no rational basis to its ends. Most laws will pass this test, as the defendant (the State) can at least show some reasonable ground for the law. The burden of proof is mostly on the plaintiff.

In heightened or intermediate review, the law (or policy) in question must serve an important interest of the government and the must be substantially related to the objective of the law. The burden of proof is somewhat divided between the opposing parties.

Under Strict Judicial review, the law (or policy) is assumed to be unconstitutional from the start. The government must show that they have a compelling interest. If this burden is met, then the government must show that the law is narrowly tailored to achieve the intended result and that it is among the least restrictive means to do so. As you might imagine, the burden of proof is now upon the government.

What is happening in the Courts, as far a all the current 2A litigation goes, is that we are trying to get strict judicial review and failing that, at least heightened (intermediate) review.
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