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Saturday, February 02, 2008

The Right to Bear Arms and the Myth of Strict Scrutiny

I've been giving a lot of talks lately about the Second Amendment thanks to D.C. v. Heller. When I propose that the Supreme Court follow the state courts and apply a reasonable regulation standard, invariably people object that strict scrutiny absolutely must apply. The argument is usually that the Second Amendment is part of the Bill of Rights, thus it should trigger the most vibrant judicial protection. Or the claim is that there can be no real "right" to bear arms if a lower standard of review applies. Both objections are based in the same misconception: the myth of strict scrutiny.

What is this myth? There is a widespread belief that all rights, and especially those in the Bill of Rights, are always governed by strict scrutiny. Like many myths, this belief is both widely held and completely divorced from reality. Strict scrutiny is only applied in the context of a handful of individual rights: free speech, religious liberty, freedom of association, due process, and equal protection. Now these happen to be the rights that most law students study. But they offer a skewed view of constitutional law. Strict scrutiny is never applied in cases arising under any provision in the Bill of Rights other than the 1st and 5th Amendments - not in the 2d, 3d, 4th, 6th, 7th, or 8th. These are governed by a variety of different tests, standards, and categorical rules, many of which are extremely deferential and place a heavy burden on the individual challenging a law. So clearly, just because a right is in the Bill of Rights does not invariably lead to strict scrutiny.

In fact, even those rights that do trigger strict scrutiny only trigger that level of judicial oversight occasionally. Even under the First Amendment, strict scrutiny does not apply if the regulated speech is commercial in nature, if the speaker is a government employee discussing job-related matters, if the speaker is a student in a public school, or if the restriction is content-neutral or restricts only the time, place, and manner of the speech. Insisting on strict scrutiny for the Second Amendment because strict scrutiny applies to the First Amendment is based on a false premise. The First Amendment speech guarantee is governed by a whole bunch of different standards. Pointing to strict scrutiny, which only applies to a subset of speech controversies, is like observing a rainbow and only seeing the color red. Yes, that color is there but it hardly captures everything that is going on.

There may be reasons for applying strict scrutiny to the right to bear arms -- which I will address in a future post -- but one thing should be clear: just because the Second Amendment might be read to protect an individual right does not mean that strict scrutiny is required. It is time we move beyond the myth that strict scrutiny applies to all individual rights. It doesn't and never has.

Posted by Adam Winkler on February 2, 2008 at 12:00 PM | Permalink


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