On Standards of Scrutiny

Eugene Volokh has a post explaining standards of scrutiny, and points out it’s not as straightforward as we’d like to believe:

Consider, for instance, what would be the standard of scrutiny for free speech. Sometimes it’s strict scrutiny, as to content-based restrictions on speech that’s outside the exceptions. Sometimes it’s a weak form of intermediate scrutiny, as to content-neutral restrictions that leave open ample alternative channels. Sometimes it’s a strong form of intermediate scrutiny, as to restrictions on commercial speech. As to speech that falls within the exceptions — as it happens, exceptions that were not themselves generated using strict scrutiny — it’s hard even to talk about standard of scrutiny. Is it that for speech that’s within the exceptions (e.g., obscenity, threats, fighting words) the standard of scrutiny is rational basis? Or should we see the standard of scrutiny for sexually themed speech, for instance, as the Miller test, for insults theCohen/Gooding/Johnson test, etc.? Certainly the cases dealing with those exceptions generally don’t even talk about “standards of scrutiny” for the exception.

Professor Volokh also looks at what this means for the Second Amendment, noting that comparisons between other rights and the right to bear arms are a useful exercise, but that it has to be tempered with an understanding that no one right is treated the same way, and they are treated differently for the different purposes they are intended for. This ties in an earlier post by Professor Volokh in regards to a previous post on gun license fees.

While I recognize that other rights have been licensed (marriage and demonstrating), or subject to registration requirements (lobbying), I can’t help but wonder about how constitutional it would seem if it was the state governments under Jim Crow that were doing the licensing and registration. Bringing up Condie Rice’s thoughts on the subject:

During the bombings of the summer of 1963, her father and other neighborhood men guarded the streets at night to keep white vigilantes at bay. Rice said her staunch defense of gun rights comes from those days. She has argued that if the guns her father and neighbors carried had been registered, they could have been confiscated by the authorities, leaving the black community defenseless.

That’s not the country we live in anymore, fortunately, but just as the Court said it was not it’s job to declare the Second Amendment dead letter, the Court also should keep in mind it wasn’t just criminals the founders had in mind when thinking about who We The People needed protection from.

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