Far from securing the sweeping reform that many may desire and others may fear, therefore, the N.R.A.’s proposal may ultimately prove merely to ensure that, at the state level, the fundamental gun rights that receive powerful judicial protection cannot be reduced below the federal floor that the United States Supreme Court has already clearly established. ![]() Second, courts can reasonably conclude that the right protected by these amendments is narrow in scope, encompassing little or no more than what federal courts today strongly protect under the Second Amendment. and its legislative partners, the proposed strict-scrutiny amendments leave courts with significant latitude to define the scope of the fundamental constitutional right to which the strict-scrutiny standard attaches. This standard, strict scrutiny, is known colloquially among lawyers as strict in theory, fatal in fact. strict scrutiny formula applies widely, its origins are generally unknown, its interpretation is more varied than is often recognized, its ultimate aims are disputed, and its conceptual presuppositions are widely misunderstood. First, contrary to the apparent aims of the N.R.A. Since Korematsu, the Supreme Court has defined the strict scrutiny test more specifically, requiring both a compelling governmental interest and narrowly. As the name implies, intermediate scrutiny is less rigorous than strict scrutiny, but more rigorous than the rational basis test. In this brief Essay, I make two overarching arguments. ![]() Three states have already embraced the N.R.A.’s proposal and Iowa is one-third of the way toward becoming the fourth. By applying strict scrutiny, the Court was in essence affirming Justice Powells individual opinion in Bakke, which posited a strict scrutiny analysis of affirmative action. ![]() Under a strict scrutiny analysis, a law that restricts freedom of speech must achieve a compelling government interest and be narrowly tailored to that interest or be the least speech-restrictive means available to the government. A standard of judicial review that requires the government prove that the means chosen to achieve a compelling governmental objective is narrowed designed to avoid violation of the right to equal protection under the laws. The National Rifle Association (“N.R.A.”) is urging states to declare in their constitutions that the right to keep and bear arms is fundamental and that any restraint on that right is invalid unless it meets the stringent demands of strict scrutiny. Strict scrutiny is the highest form of review that courts use to evaluate the constitutionality of laws.
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