Constitutional Law

Heller/Parker and standard of review

Prof. Winkler argues for a low standard, while Prof. Reynolds (aka Instapundit) argues for a high one.

Just had a thought regarding the Sol. General's position. It is along these lines:

(1) The case law the SG invokes -- while the SG never tells the Court of this -- actually calls for two different levels of review. The cases cited deal with election ballot issues. Minor infringements of the 1st Amendment there get something like intermediate level review. Substantial infringments get strict scrutiny.

(2) An absolute ban on handguns, which are currently about 40% of all firearms, and the portion most often used in self-defense. cannot to my mind be anything but a substantial infringment of the right to arms.

(3) Therefore, under the cases the SG cites, strict scrutiny applies. The DC Circuit applied that standard, and thus the case should be affirmed, not remanded, as the SG requests.

Full post as published by Of Arms and the Law on February 02, 2008 (boomark / email).