What kind of Scrutiny does SCOTUS use

This is a discussion on What kind of Scrutiny does SCOTUS use within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; Disclaimer:I am in no way shape or form a Constitutional lawyer. Just a a guy on a forum trying to edjumicate myself Recently we have ...

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Thread: What kind of Scrutiny does SCOTUS use

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    VIP Member Array suntzu's Avatar
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    What kind of Scrutiny does SCOTUS use

    Disclaimer:I am in no way shape or form a Constitutional lawyer. Just a a guy on a forum trying to edjumicate myself

    Recently we have been talking about gun buster signs and if business should be allowed to prohibit firearms from their establishments for employees and patrons. A forum member has repeatedly said this:
    I argue that 'lawful possession of a firearm' be added to the list because laws supporting preferences of private business owners to arbitrarily ban a right do not meet SCOTUS "Strict Scrutiny" standards.
    I have done some research and not all SCOTUS decisions (as well as other courts) do not have to use "Strict Scrutiny". It is a tiered approach that includes intermediate and the lowest constitutional standard is “rational basis". It appears t me from writings in the decisions it is up to the justice to decide what type of scrutiny is to be applied. That is to say they do not all get together and agree that they will use the strict scrutiny standard or another.

    Yet, there are conflicting views on different cites I have visited. Guess for discussion I had two points:

    1. What level of scrutiny is used by courts for 2A and equal protection
    2. Should we be careful when posting legal terminolgy as if we are Constitutional laywers? (and that goes for myself also!)
    Then I heard the voice of the Lord saying, “Whom shall I send? And who will go for us?”
    And I said, “Here am I. Send me!”

    Isaiah 6:8

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    VIP Member Array suntzu's Avatar
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    Forgot to add this: Though the standard of Strict Scrutiny is used for cases involved in equal protection which includes:
    Classifications Burdening Fundamental Rights
    1. Denial or Dilution of the Vote
    2. Interstate Migration
    3. Access to the Courts
    4. Other Rights Recognized as Fundamental

    SCOTUS and other courts routinely are deciding on multiple issues and may use different standards of scrutiny when confronted with a case that incolves severl issues. Most cases that involve any type of gun control, including where you may carry, seem to use the intermediate level of scrutiny, not strict scrutiny.
    Then I heard the voice of the Lord saying, “Whom shall I send? And who will go for us?”
    And I said, “Here am I. Send me!”

    Isaiah 6:8

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    IF SCOTUS used "strict scrutiny," there would be no guns laws at all to be "infringed." But that is not the case. I believe they follow the wording and intent of the Constitution, and therein lies the problem, they all have different "opinions" on intent.
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    I think there may be some confusion here between too different terms: "strict construction"
    and "strict scrutiny." The only thing they have in common is the word strict.

    e.g., a strict constructionist might say that 1 A actually does allow you to shout fire in a theater,
    since the wording has no qualifying language allowing for exceptions; a similar argument is made
    by some with respect to 2A.

    Strict scrutiny is something else. "B. Strict scrutiny

    1. Law must serve a compelling government interest

    2. Law must be narrowly tailored—typically must be the least restrictive means

    What kind of Scrutiny does SCOTUS use
    If the Union is once severed, the line of separation will grow wider and wider, and the controversies which are now debated and settled in the halls of legislation will then be tried in fields of battle and determined by the sword.
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    Unfortunately, the justices in the Heller decision did not specify what level of scrutiny to use for future 2A cases. This means an "anti" majority could use intermediate or, even worse, rational basis to decide cases. An "anti" majority could essentially deem all restrictions as "reasonable".

    Since a couple of justices will almost certainly be replaced over the next four years, I wonder if they will be pro or anti?

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    Whimsical "scrutiny," it seems to me, varying dependent on how badly a given robe wants to interpret/skew something. Goes with the territory.

    If it followed any sort of rational and consistent mode of scrutiny, IMO we wouldn't have the long-standing evisceration and mangling of the 2A, 1A and all the rest.
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    VIP Member Array suntzu's Avatar
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    Quote Originally Posted by rtroha View Post
    Unfortunately, the justices in the Heller decision did not specify what level of scrutiny to use for future 2A cases. This means an "anti" majority could use intermediate or, even worse, rational basis to decide cases. An "anti" majority could essentially deem all restrictions as "reasonable".

    Since a couple of justices will almost certainly be replaced over the next four years, I wonder if they will be pro or anti?
    That is how I take it also. And to complicate it when the casses go before the courts there is a variety of issues that blend into their decision....like the ruling for the Arizona Immigration law or whatever it was. They struck down parts of it using strict scrutiny and kept others using a lesser one.
    Then I heard the voice of the Lord saying, “Whom shall I send? And who will go for us?”
    And I said, “Here am I. Send me!”

    Isaiah 6:8

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    Quote Originally Posted by suntzu View Post
    That is how I take it also. And to complicate it when the casses go before the courts there is a variety of issues that blend into their decision....like the ruling for the Arizona Immigration law or whatever it was. They struck down parts of it using strict scrutiny and kept others using a lesser one.
    I may well not know what I am talking about, but I've spent lots of time in that famous
    Motel that makes you "smart:" My understanding is that when a law conflicts with rights
    it gets strict scrutiny per 1) compelling government interest; 2) Narrow tailoring to the situation
    the government has an interest in. For example, making laws prohibiting "yelling fire in the theater"
    clearly would involve a compelling government issue, and would be narrowly tailored to the
    situation.

    Our Supremes having ruled that regulation of gun ownership is constitutional, the test
    of whether or not a law was actually constitutional would appear to ride on whether or not
    there is a compelling government interest and if the law is narrowly tailored to some situation
    or circumstance. For example, TX prohibits carry within some distance (can't recall precisely)
    of the Huntsville Penitentiary when an execution is scheduled. It isn't hard to imagine that
    the legislators had a compelling interest in doing that, and that the law is very narrowly tailored
    to a specific situation.

    Of course, in practice, I suspect that ccw9mm's "Whimsical "scrutiny," is what really happens
    most of the time. One man's compelling governmental interest is another man's lost freedom.
    Think Terry stop, as just one example.
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    VIP Member Array suntzu's Avatar
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    Quote Originally Posted by Hopyard View Post
    I may well not know what I am talking about, but I've spent lots of time in that famous
    Motel that makes you "smart:" My understanding is that when a law conflicts with rights
    it gets strict scrutiny per 1) compelling government interest; 2) Narrow tailoring to the situation
    the government has an interest in. For example, making laws prohibiting "yelling fire in the theater"
    clearly would involve a compelling government issue, and would be narrowly tailored to the
    situation.

    Our Supremes having ruled that regulation of gun ownership is constitutional, the test
    of whether or not a law was actually constitutional would appear to ride on whether or not
    there is a compelling government interest and if the law is narrowly tailored to some situation
    or circumstance. For example, TX prohibits carry within some distance (can't recall precisely)
    of the Huntsville Penitentiary when an execution is scheduled. It isn't hard to imagine that
    the legislators had a compelling interest in doing that, and that the law is very narrowly tailored
    to a specific situation.

    Of course, in practice, I suspect that ccw9mm's "Whimsical "scrutiny," is what really happens
    most of the time. One man's compelling governmental interest is another man's lost freedom.
    Think Terry stop, as just one example.
    I ain't no Constitutional lawyer either. And from what I read you might be right but only when it pertains to equal protection laws which do not include people carrying guns because they are not a protected class.
    Furthermore, the individual is not being denied entry to anything which is what the courts have looked at. The are allowed to enter as long as they do carry a firrearm. The 2nd A does not clearly state that you have a right to carry a gun to defend yourself. The right to life liberty et al is addressed elsewhere.

    Look, I don;t know the answer but I think it is an interesting discussion and would like to learn more. But one thing I do know from wht I have read is that "strict scrutiny" is not always the level used for issues dealing with 2A and rights to carry issues.

    I will also agree, whether right or wrong SCOTUS and the Federal courts use "whimsical scrutiny" when it comes to how they decide. But again, I don't see how someone can categoricaly state that such and such does not pass the strict scrutiny test when in fact that is not the level that is being or should being used.
    Then I heard the voice of the Lord saying, “Whom shall I send? And who will go for us?”
    And I said, “Here am I. Send me!”

    Isaiah 6:8

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    VIP Member Array Smitty901's Avatar
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    Any ruling the court makes only stands as long as 5 of the 9 want it to. You can make the Constitution say or not say anything you want as along as 5 of the 9 go along.
    5 of the 9 say 2nd does not apply to individuals then that is that. Turn them in it is all over.
    Anyone that thinks different has not been paying attention. So the only thing that madders is who is currently sitting in those seats and who will be.
    The deck is being stacked and soon 5 of the 9 will have a different view .
    "They got it wrong and when I appoint one more justice I will fix that"

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    VIP Member Array suntzu's Avatar
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    Quote Originally Posted by Smitty901 View Post
    Any ruling the court makes only stands as long as 5 of the 9 want it to. You can make the Constitution say or not say anything you want as along as 5 of the 9 go along.
    5 of the 9 say 2nd does not apply to individuals then that is that. Turn them in it is all over.
    Anyone that thinks different has not been paying attention. So the only thing that madders is who is currently sitting in those seats and who will be.
    The deck is being stacked and soon 5 of the 9 will have a different view .
    "They got it wrong and when I appoint one more justice I will fix that"
    And that applies to this discussion how?
    Then I heard the voice of the Lord saying, “Whom shall I send? And who will go for us?”
    And I said, “Here am I. Send me!”

    Isaiah 6:8

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    VIP Member Array Smitty901's Avatar
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    Quote Originally Posted by suntzu View Post
    And that applies to this discussion how?
    Simple it is meaningless. Your trying to apply some stand on how the court acts there is none.

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    VIP Member Array suntzu's Avatar
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    Quote Originally Posted by Smitty901 View Post
    Simple it is meaningless. Your trying to apply some stand on how the court acts there is none.
    I am not trying to apply anything. I am curious as to how the courts system works and since the topic of "strict scrutiny" has been brought up in other threads I thought I would start one here. If you know of anything about COnstituional law i would love to hear your opinions, if not.........
    Then I heard the voice of the Lord saying, “Whom shall I send? And who will go for us?”
    And I said, “Here am I. Send me!”

    Isaiah 6:8

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    The easiest answer to this is that the person you talked about in your OP is someone that is playing "jailhouse lawyer". They know some terms and how to use them in conversation but don't seem to really understand how everything works.

    In short, unless you can claim that the second amendment somehow makes the right to carry a gun any place you please a fundamental right... in this case that would have to be weighed against your property rights, which are a fundamental right and is addressed quite often by the founders.... then you don't have the basis for strict scrutiny.

    The rational basis review would actually fit here as much as we wouldn't want to admit it. Unless we get some new case law that changes the positioning of gun rights it is a joke to ascribe the highest levels of scrutiny to something that legal scholars didn't consider an individual right until recently.
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    see next post
    "One of the greatest delusions in the world is the hope that the evils in this world are to be cured by legislation."
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    Second Amendment -- Established December 15, 1791 and slowly eroded ever since What happened to "..... shall not be infringed."

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