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Originally Posted by icedog88
Another question as to the SCOTUS ruling on a constitutional right to carry. If such a ruling were to come down, does that not open a whole new can of worms? This could mean that my constitutional right to carry could trump states rights in regards to where they say I could not carry in said state no? Just a thought.
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Yes! That is exactly one of the points I've been trying to make. Forgive me for not being clearer. If SCOTUS says that RKBA is an individual, fundamental right, then your individual, fundamental right to keep and bear arms will (or should) trump a neighboring State's right to say that you cannot carry in their territory.
Perhaps a quick lesson in judicial scrutiny would help. If you (or any other reader) already knows this, then accept my apologies and just skip over this part.
Whenever a constitutional challenge is mounted as against a law, there are three levels of scrutiny that the court can apply. We (RKBA folks) have not yet gotten a SCOTUS decision that spells out which level applies to the 2A cases.
1) Rational basis -- The law is presumed to be constitutional and if there is any
rational basis for enacting the challenged law, it will be upheld. This is basically a "challenger loses" rule.
2) Intermediate scrutiny -- (I'll have to use a First Amendment case for this one.) Under
intermediate scrutiny, a "need not be least speech-restrictive means of advancing government's interests, provided that means chosen do not burden substantially more speech than is necessary to further government's legitimate interests." Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994) -- In other words, a law need not be the least restrictive means available to accomplish the gov't's goals, but it cannot "substantially burden" other rights.
3) Strict scrutiny -- If SCOTUS decides that the 2A right is an individual, fundamental right, then
strict scrutiny will apply. Under this analysis, the law is will be held constitutional "only if [it is] narrowly tailored measures that further compelling governmental interests." Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S. Ct. 2097, 2113, 132 L. Ed. 2d 158 (1995). This one shifts the burden to the government to show that: (a) that there is a
compelling government interest which is supported by the law at issue,
and (b) that the challenged law is
narrowly tailored to meet the interest. -- This is the one we want.
And yes, it is quite the quandry for the anti-gunners, isn't it?