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Strict Scrutiny for Second Amendment Rights?

By Jack M. Balkin

Putting on my doctrinalist's hat, rather than my historian's hat, I was nonplussed by Deborah Pearlstein's casual statement that if we recognized a fundamental right to keep and bear arms "that citizens would be able to carry guns with them pretty much anywhere, anyplace, for any reason. For such is the result at least traditional strict scrutiny of regulation of a fundamental right would most likely bring."

Where did the idea come from that the fundamental rights listed in the Bill of Rights are generally protected by a test of strict scrutiny?

As I look through the list of fundamental rights, there are only a limited number of them where we use such a test. Take just the first amendment as an example. We do not use the strict scrutiny analysis for libel, and we do not use it for time place and manner regulation, we do not use it in press access cases, we do not use it in telecommunications cases, and we do not use it in copyright cases. Outside of the First Amendment, we do not use strict scrutiny in cases involving the right against searches and seizures,or the right against compelled self-incrimination, or the right to a jury trial, or the right to representation by counsel. We do not use strict scrutiny analysis in Eighth Amendment cases.

Scrutiny analysis is a very recent methodology in our history, and it has only been applied selectively in the area of fundamental rights, including most importantly, the rights contained in the Bill of Rights. How the judiciary protects rights depends on the nature of the right, not on some one-size-fits-all mantra. I am frankly amazed by the idea that recognizing a second amendment right to keep and bear arms would mean that all gun regulations would be subjected to the same strict scrutiny that applies to content based regulations under the first amendment. (I should note that even this test is actually fudged in practice: the Court does not apply it to a wide range of content based regulations of speech acts that it simply declares are not protected speech.). The natural analogy would be not to cases involving content based regulations but to the reasonableness test under the Fourth Amendment or to the test of time, place and manner regulation, which is designed to protect public health, safety and convenience. Of the forty-some state courts that have recognized a right to keep and bear arms in their state constitutions, I know of very few that apply a test of strict scrutiny of the kind Deborah suggests. The state courts have recognized this right for some time, and I don't see a lot of cases where courts hold "that citizens would be able to carry guns with them pretty much anywhere, anyplace, for any reason." As Deborah suggests, I'm all for paying attention to our modern doctrinal inheritance. But let's look at that inheritance more closely.

Full post as published by Balkinization on March 21, 2008 (boomark / email).