Under some well settled principles of Constitutional law, federal courts, including the Supreme Court, have long permitted government to regulate Constitutional rights, subject to certain constraints.
Court rulings have for many years permitted regulation of a Constitutional right as necessary to further a compelling state interest as long as such regulation is as narrow it may possibly be and still serve that interest. Any such regulation must not totally obviate the Constitutional right. Furthermore, any such regulation must be evenly applied and not subject to the discretion of governmental authority. Application of these principles may be understood, I think, in relation to the First Amendment.
While the First Amendment protects freedom of speech, assembly and religion, we know there has been a history of certain regulation of speech, assembly and religion. A few examples are:
[1] Laws prohibiting such things as false advertising, fraud or misrepresentation, as well as laws requiring certain disclosures in connection with various transactions, would absolutely survive a challenge to their validity on Constitutional grounds even though such laws do impinge on the freedom of speech. Among other things, such laws serve compelling state interests related to promoting honest business and helping to preserve the integrity of commercial transactions. They tend to be only as broad as necessary to serve that function.
[2] Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official.
[3] In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion. And if someone’s religion required the practice of human sacrifice, he can not expect to successfully hide behind the First Amendment if prosecuted for murder (or assisting a suicide if the victim were willing).
So even with a favorable ruling in Heller, we will continue to see regulation of the RKBA, and much current regulation will survive constitutional challenge. And there will be continued litigation testing existing law, as well as new laws. But at least with a clear “individual rights” ruling we’ll be in a better position to argue for a stricter standard of review. We should also be able to successfully challenge laws that give discretion to government official in connection with the RKBA.