For what itâ€™s worth, I think we should pay close attention to the legal framework outlined in the administrationâ€™s brief. Iâ€™d wager that the Supreme Court adopts it, or something close to it.
The last sentence there is why I had such a negative reaction to the brief.Â In my mind it opened the door to the court to rule in favor of an individual right, but based on an interpretation that intended to uphold every federal gun law, and will make attacking state laws, like Massachusetts byzantine licensing system, and New Jersey’s “maybe we’ll issue you one this year, if we feel like it.” permitting system for purchasing handguns.
My outrage in this is mellowing a bit, because perhaps I am expecting too much from The Court in Heller.Â If, in order to get a majority to rule in favor of an individual right, they need a track of reasoning that the liberals feel comfortable with, perhaps this is a way they could go without handing us an outright defeat.
If The Court did adopt the government’s position would I consider it a victory or a defeat?Â Â I think I’d have to still consider it a victory, because it will at least force the lower courts to start asking the proper questions, even if the ultimate result is not being able to use Heller to get rid of as many gun control laws as we would like.Â My big disappointment is that the government’s brief is that it merely calls for “heightened scrutiny”, which implies the government is after something less than strict scrutiny.Â What level of heightened would make the government happy?Â No doubt whatever level is necessary to uphold the vast majority of federal prohibitions.Â That should not be the concern when it comes to constitutional matters.Â The Second Amendment deserves the same standard of scrutiny as every other part of the Bill of Rights.