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First, let me say that I have no legal education. What I write comes from a perspective of logic and a reasonable understanding of the English language, dangling participles excluded. Corrections and additions are always welcome. In the course of judicial review, there are several standards a law can be reviewed under when considering its constitutionality. They are rational basis review, intermediate scrutiny, and strict scrutiny. Rational basis review is the lowest level of review. In other words, this standard is the most lax at considering whether or not a law is constitutional. The government must only show that the law is a rational action to a legitimate government concern. Intermediate scrutiny is the next higher level. For a law to pass constitutional muster, it must substantially further an important government interest. Strict scrutiny is many places referenced as the highest standard of review. Amongst other considerations, strict scrutiny applies to reviews of laws impacting fundamental rights. According to Wikipedia, the law: First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.
Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (over-inclusive) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.
Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this 'least restrictive means' requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong. This is the toughest standard to pass for a law to be considered constitutional. And this is where we get to D.C. v. Heller. For obvious reasons, the D.C. government argued for a rational basis review. It was the standard most likely to provide them a positive outcome. Holding 3 on page 2 of the decision quickly dispensed with the review standard argument by stating "Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster". D.C.'s argument was mute. [bold added]
But what of future Second Amendment challenges? This is where we get to footnote 27. It states: JUSTICE BREYER correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. Post, at 8. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553 U. S. ___, ___ (2008) (slip op., at 9–10). In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U. S. 144, 152, n. 4 (1938) (“There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments. . .”). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect. Footnote 27 provides us a clue to the future. Any law, to pass a constitutional challenge on Second Amendment grounds, must pass a strict scrutiny test. The Brady Bunch won't be announcing this part of the decision. Update: After letting this post sit for a bit and reading Footnote 27 and Strict Scrutiny over at Say Uncle, I have realized that I jumped too far in conclusion. The more logical conclusion is that Second Amendment challenges will face scrutiny greater than rational basis review. At this point it could be intermediate scrutiny or strict scrutiny. h/t to Brutal Hugger.
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