Roberts Not Liking Standards of Review

Anyone notice in the oral arguments that Roberts took a swipe at having standards of review like “strict scrutiny” “lesser scrutiny” etc?  He indicated that since we’re starting with a fresh slate, why don’t we just define the scope of the right, and not worry about what level of scrutiny to apply.  I’m thinking he’s setting up to uphold the lower court, punt on the standard of scrutiny, and just have a ruling that says the DC statutes in question violate the second amendment.

That would be the ideal outcome, in my opinion.  Leave it to the lower courts to decide how to implement the ruling in regards to restructuring The District’s gun laws.

5 thoughts on “Roberts Not Liking Standards of Review”

  1. It would, but it would allow the lower courts to hash out a lot of the details. Strict scrutiny isn’t really much of a guidance anyway.

  2. I thought exactly the same thing when I heard it. They want the opportunity to rule against DC but narrowly limit the decision to ONLY affect the most onerous provisions…i.e, the ban on handguns and the strict prohibition against functional firearms in the home.

    I got the feeling that they were leaning toward “safe storage laws” as reasonable (and Gura seemed to concede that point), but concentrated on the fact that DC’s law does not allow for making a firearm functional for ANY reason…including self-defense.

    I think Gura scored big when he pointed out that, if DC had wanted to clarify their law to allow for functional firearms in the case of self defense, they’ve had ample opportunity to do so but have declined.

    I also was disappointed that Gura reiterated the position that Miller limited the types of firearms protected by the Second Amendment to those “with common civilian application.”

    I understand WHY the Heller team made such an argument, but (as I stated in a post a while back) I disagree with the specifics of the argument because it blatantly misstates Miller. The Miller decision, when read properly, limits Second Amendment protections to those arms in common MILITARY use at the time, not common civilian use. Furthermore, the primary reason that “machine guns” are not in common civilian use at this time is because of pre-existing infringements in the form of the Hughes amendment. His argument would be tantamount to DC arguing that their ban of handguns is perfectly acceptable because no one in DC has handguns anyway. That’s called circular logic and I personally think that our side can do better than that.

  3. I agree with Sailorcurt — very few have machine guns because they’ve been so tightly regulated that their cost is prohibitive — it is circular logic.

    But I agree with staying away from “legalize machine guns because they’re the perfect ‘milita’ weapon” as that will only “scare the white folk.”

    Cross that bridge when we get to it.

  4. X Scrutiny is a SCOTUS invention; perhaps better to say that non-strict scrutiny is a SCOTUS invention… I can’t say I am unhappy that “levels” of scrutiny for Constitutional rights are going away – they all should have the equivalent of Strict Scrutiny.

    When the SG notes that the constitutionality of a law depends on the level of scrutiny applied, because the law depends on a lower standard of review than strict, and the constitutional right in question is a basic part of the bill of rights, levels of scrutiny are looking pretty threadbare.

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