It is especially inappropriate for the majority opinion here to apply intermediate scrutiny rather than strict scrutiny to D.C.’s ban on semi-automatic rifles. No court of appeals decision since Heller has applied intermediate scrutiny to a ban on a class of arms that have not traditionally been banned an “incidental” regulation. It is equivalent to a ban on a category of speech. Such restrictions on core enumerated constitutional protections are not subjected to mere intermediate scrutiny review. The majority opinion here is in uncharted territory in suggesting that intermediate scrutiny can apply to an outright ban on possession of a class of weapons that have not traditionally been banned.
Gun bans and gun regulations that are longstanding—or, put another way, sufficiently rooted intext, history, and tradition—are consistent with the Second Amendment individual right. Gun bans and gun regulations that are not longstanding or sufficiently rooted in text, history,and tradition are not consistent with the Second Amendment individual right.
Judge Brett Kavanaugh
October 4, 2011
HELLER, et al., Appellants v.DISTRICT OF COLUMBIA, et al., Appellees.No. 10–7036.
[Sounds solid to me. I just want to hear that in a majority opinion from SCOTUS.—Joe]