Strict Scrutiny-the Brady Bill

Wildalaska

Moderator
OK lets really have some fun and lets assume that we now have an SCOTUS ruling that the 2nd protects an individual right to keep and bear arms.

Such a ruling necessarily entails that gun control laws be evaluated using a strict scrutiny test.

Sorry boys, debate strict scrutiny all ya want, you are stuck with it!

So using that test, is the Brady Bill violative of the second am or not?

Discuss.

WildpsicouldeasilyprovethatitisnotletsseewhoelsecanputemotionasideAlaska
 
I'll play along.

Defining "strict scrutiny":

First, it must be justified by a compelling governmental interest. That is, actually crucial, not just preferred.

Second, it must be narrowly tailored to achieve that goal or interest. That is, specifically worded to achieve the interest, no more and no less.

third, it must be the least restrictive means for achieving that interest. That is, there is no less intrusive way to accomplish the goal.

So looking at the Brady bill, the "compelling interest" is the public welfare through denying the sale of handguns to known criminals. The method employed is provided by compiling a database of people who are prohibited and requiring retailers to verify that their prospective client isn't on the list.
The bill and it's measures are strictly tailored to achieve this end.
There is no possible way to meet this interest through a less-invasive means.

Do I win a cookie? :D
 
Ok. This is where my memory of Constitutional Law breaks down a little...

Even after you establish the "strict scrutiny" standard for a right, there are different standards that the State must prove if they wish to infringe on that right. If you're a "protected class" of people, i.e. a minority, then the burden of proof is extremely high, something like "absolutely necessary to accomplish a compelling governmental interest," and the law must "only infringe the right so far as is necessary to further the compelling governmental interest." (This is all REALLY fuzzy...) If the law is not targeting a "protected class," then the burden of proof for the State becomes lighter...

More questions:

1.) Are "gun owners" in a protected class, since anyone in the country can own a gun? In other words, are we a "minority"?

2.) Does the government have an "interest" in restricting use or ownership of firearms? (The answer to this is most assuredly, yes. The interest is the reduction of crime and the prevention of unnecessary death and destruction... blah, blah, blah...)

3.) How "compelling" or "important" or "strong" is the government's interest in preventing violence?

4.) Is there a clear relationship between restricting use/ownership of firearms and a reduction or prevention of violence? Will the restriction proposed actually serve to further the government's interest?

5.) Does the law do more than it says it does? Does enforcement of the law result in people being excluded from gun use/ownership who are not the kind of people the law was designed to exclude from gun use/ownership? Does the law go too far?

The analysis for the "strict scrutiny" test will require answers to all of these questions...
 
To display my ignorance, where did NICS come from? I remember the federally mandated local background checks were found unconstitutional, but I am not certain what part(s) of Brady still exist. I'm not being obstinate, I really don't know. :)
 
As long as the Brady Bill does not prohibit a person(who qualifies under federal and state laws for firearms ownership) from owning a firearm there would not be much of an argument. In the circuit courts DC decision they said that there could be registration for firearm ownership and other controls as long as they did not prohibit firearms ownership to qualified people. If all the Brady Bill does is require a background check to prove the individual has no disqualification from owning a firearm it would probably pass the scrutiny test.

The Brady Bill has never prohibited me from owning or buying a firearm.
 
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