How Courts Can *legally* Take Your Gun Rights Away

Published on October 27, 2021
Duration: 11:17

This expert analysis by Constitutional Attorney Mark W. Smith explains how federal courts utilize the 'tiers of scrutiny' doctrine to potentially infringe upon Second Amendment rights. The video details the three levels of scrutiny and argues that this subjective judicial review allows judges to prioritize policy over constitutional text, referencing key Supreme Court cases like Heller and Bruen.

Quick Summary

Federal courts use the 'tiers of scrutiny' doctrine—Strict, Intermediate, and Rational Basis—to evaluate gun control laws. This doctrine allows judges subjective discretion in balancing rights against government interests, a practice criticized for potentially infringing on Second Amendment protections as established in cases like Heller.

Chapters

  1. 00:00Introduction to Tiers of Scrutiny
  2. 01:29The Three Tiers of Scrutiny Explained
  3. 03:38Historical Context of Constitutional Law
  4. 05:39Subjectivity in Judicial Review
  5. 07:14Heller and Bruen Cases on Rights
  6. 10:03Conclusion: Scrutiny as an Excuse

Frequently Asked Questions

What are the 'tiers of scrutiny' used by courts regarding gun control laws?

Courts apply three standards: Strict Scrutiny (most protective), Intermediate Scrutiny (less stringent), and Rational Basis (easiest for government to meet). These levels determine how closely a law infringing on rights is examined.

How did the Heller decision impact the use of 'interest-balancing' for Second Amendment rights?

In the 2008 Heller decision, the Supreme Court, through Justice Scalia, rejected interest-balancing for constitutional rights. The ruling stated that rights are protected with the scope they had when adopted and cannot be easily balanced away by future judges.

Why is the 'tiers of scrutiny' doctrine considered controversial in relation to constitutional rights?

The doctrine allows judges subjective discretion to determine if a right is 'important enough' compared to government interests. Critics argue this gives judges power to follow policy preferences over the Constitution's text, potentially infringing on fundamental rights.

What is the historical context of the 'tiers of scrutiny' doctrine in US law?

Historically, courts focused on the Constitution's text. The tiers of scrutiny doctrine emerged in the 20th century, notably starting in 1963, shifting judicial review towards a more complex, multi-tiered analysis of laws.

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