The truth is that what our court calls “intermediate scrutiny” when reviewing Second Amendment cases doesn’t even rise to the level of real rational basis review. That’s a bold claim, I know. But think about it: if your state banned all cars, forcing all its citizens to use bicycles because many people are killed by drunk drivers (not to mention automobile accidents generally), would you think that was rational? No. What if California just banned all large vehicles (trucks, vans, etc.) because on rare occasions some crazed individual intentionally drives his car into a group of people, and large cars presumably do more damage? I doubt it. But that is what California has done here — banned a type of firearm magazine that has obvious self-defense benefits when used against a group of assailants, based on a purported harm that, while high-profile, is statistically extraordinarily improbable. Much more improbable than harm from misuse of a car. And while cars are not expressly protected by the Constitution, “arms” are.
The reason I think most of my colleagues on this court would genuinely struggle more with a car ban than they do with a gun ban is that they naturally see the value in cars. They drive cars. So they are willing to accept some inevitable amount of misuse of cars by others. And my colleagues similarly have no problem protecting speech — even worthless, obnoxious, and hateful speech — because they like and value speech generally. After all, they made their careers from exercising their own speech rights. On the other hand, as clearly demonstrated by this case, most of my colleagues see “limited lawful” value in most things firearm-related.
But the protections our founders enshrined in the Bill of Rights were put there precisely because they worried our future leaders might not sufficiently value them. That is why our court’s “intermediate scrutiny” balancing approach to the Second Amendment is no more appropriate here than it would be for any other fundamental right. As the Supreme Court explained in rejecting Justice Breyer’s “‘interest-balancing’ approach,” noting that “no other enumerated constitutional right[‘s] … core protection” was subject to such a test,
[t]he very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.
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Originally Posted by Stephanie B
