Quoted: Quoted: They don't see the Second Amendment as a FUNDAMENTAL RIGHT, which would cause it to be reviewed using a strict scrutiny standard. Fundamental rights are not necessarily reviewed under a strict scrutiny standard. Look at Roe v. Wade which says that the right to privacy is a fundamental right and then establishes the trimester test. You can look further to Planned Parenthood v. Casey which reaffirms that the right to privacy is a fundamental right and then write the even more vague "undue burden" test that is clearly not strict scrutiny. In fact, Rehnquist's dissent in Casey makes the point that the majority claims this is a fundamental right and then applies a standard of less protection than any other fundamental right. Under Rehnquist, the Court seemed to be willing to "split the baby" as it were by creating in-between standards that didn't fit either rational basis or strict scrutiny for cases like abortion, gender discrimination, and affirmative action. I think part of the reason the Court won't hear a Second Amendment case is because nobody has been able to think of an intermediate standard that would work and the previous attempts (Casey, Grutter, etc.) have not been a rousing success.

I just don't see them doing that any time soon.  Abortion has always been treated much differently than other issues before court.

A lot of the abortion tests and the way in which abortion legislation is reviewed has been a kind of "pull out of nowhere" thing with sketchy logic at best.  

Not to mention I'm sorry, but there shouldn't be an "intermediate test" for the legislation that restricts the Second.  It should be held a Fundamental Right reviewed under strict scrutiny.

Quoted: Quoted: Quoted: (snip)My experience is that most of the elite who go on to be judges have very little experience with firearms, and don't really know how to handle the issue.  They are concerned that they cannot come up with a way to negate some gun control laws without killing everything and having psychos running around with RPGs, so they duck the issue. Really? Scalia is a hunter. Yes, and, judging from the numerous threads here on hunters lately, we all know how well-versed hunters are in gun knowledge and how pro-RKBA they are.... I'd prefer a judge who owns and shoots an AK or AR, myself. Then he/she might know what he/she is talking about.

Scalia is the MAN though. Trust me

He is the best Justice on the Supreme Court.

That guy is so much fun to listen to during oral arguments, because he has such a firm grasp on the Constitution and common sense that the liberal Justices get frustrated to the point of comedy.  

Quoted: The second amendment was written to protect the security of a free state. There is a reason they did not make a distinction in the 2nd about what kind of "arms" we are entitled to. When the 2nd Amendment was drafted, there weren't too many "kinds" of arms available. They hadn't even invented the percussion lock, for Chrissake! The only kind of firearm was still a flintlock!

Yes, but they had already witnessed the evolution of firearms and were intelligent enough to know that firearms would not be frozen in time.

Quoted: Stevens is getting up there.  He has no doubt been waiting for President Hillary Clinton to appoint his successor.  He is very liberal and will not retire under a Republican president unless he has no choice. This is part of what makes this next presidential election so critical, as Stevens will probably either die or retire before 2012 (will be 87 in April).  His successor will help shape the court (and this nation) for decades.  Any justice appointed by McCain (who I think will get the Republican nomination) would be better than any justice appointed by Hillary, Obama, or Edwards.

Who know with McCain?

I mean there have been much more conservative Presidents than a John McCain type who have appointed Justices that turned out to be liberals.  

Quoted: Quoted: Stevens is getting up there.  He has no doubt been waiting for President Hillary Clinton to appoint his successor.  He is very liberal and will not retire under a Republican president unless he has no choice. This is part of what makes this next presidential election so critical, as Stevens will probably either die or retire before 2012 (will be 87 in April).  His successor will help shape the court (and this nation) for decades.  Any justice appointed by McCain (who I think will get the Republican nomination) would be better than any justice appointed by Hillary, Obama, or Edwards. Who know with McCain? I mean there have been much more conservative Presidents than a John McCain type who have appointed Justices that turned out to be liberals.

This is correct.  However, in this day and age potential nominees are scrutinized more heavily and I don't see another Ford/Stevens thing happening again.  I would take my chances with a McCain appointee over a Hillary/Obama/Edwards nominee any day of the week.

Quoted: Still trying to figure out where the Constitution allows the feds to require a license to sell guns. Can't find that authorization

Interstate commerce "clause".  Current interpretation upheld by the SC is anything that might have any impact on anything that might have any impact on anything that might have any impact on interstate commerce is covered.  What does this not cover?  I don't know, I can not come up with anything.

Quoted: SHORT answer: They don't see the Second Amendment as a FUNDAMENTAL RIGHT, which would cause it to be reviewed using a strict scrutiny standard. Under "strict scrutiny" the government would need a compelling reason for restrictions on the Second Amendment, the restrictions would have to be narrowly tailored to prevent the harm they were seeking to protect us from, the state would have to show that the restrictions were certain to prevent the harm, and in the end most things reviewed under "strict scrutiny" like discrimination fail and those law are overturned. Right now the Supreme Court reviews the Second Amendment using the "rational basis" review. Under "rational review" the state need only show the most basic fundamental rational basis either contained in the bill or presented afterwards upon challenge for the restriction on the Second Amendment to be upheld.  In fact, the court can supply its own ratinoal basis for the restriction to uphold it.  Most bills reviewed under rational basis are upheld.

There's the same kind of controversy and predicament over the Commerce Clause and the Necessary and Proper clause.  Both of these have been elasticized and if they were more "originally" interpreted a lot of New Deal law would crumble.  I like what one professor said though.  If we found something good in the laws that might disappear then we could write the amendment to cover it, like Civil Rights.  In other areas people might give up some laws that favor them if they see that everyone was having to accept the same fortune, the idea being that the regulatory and welfare contraption is at bottom a negative sum game.

Quoted: I just don't see them doing that any time soon.  Abortion has always been treated much differently than other issues before court.

Yes; but abortion isn't the only issue to be treated that way. Gender discrimination and affirmative action have also had similar tests applied. Some of the decisions on chruch and state issues could qualify as well.

A lot of the abortion tests and the way in which abortion legislation is reviewed has been a kind of "pull out of nowhere" thing with sketchy logic at best.

I absolutely agree. I think the failure of those tests is one reason why SCOTUS avoids a 2A case. An intermediate test supported by sketchy logic will be absolutely eaten alive under a constant flow of firearms challenges. Not only that; but most of the people making those challenges are not the kind of people we want pioneering 2A law; because most of them will be hardcore criminals.

Not to mention I'm sorry, but there shouldn't be an "intermediate test" for the legislation that restricts the Second.  It should be held a Fundamental Right reviewed under strict scrutiny.

Even "strict scrutiny" has shades to it. SCOTUS would never support a 1A standard of strict scrutiny for reasons that DADX3 already outlined. As far as applying a milder version of strict scrutiny that wouldn't run into those problems, Thomas is the only judge on the Court right now that would even contemplate that.

The only way SCOTUS will ever adopt a strict scrutiny test for the 2A is if the underlying culture changes dramatically and I just don't see that happening within my lifetime. If such a change DID happen within my lifetime, I doubt I would like it much since generally you don't see that kind of 180 in cultural values short of some catastrophic event that causes people to recalibrate their values in a serious way.

Besides, the history of Supreme Court decisions is full of examples of intermediate standards (like "separate but equal") that eventually were replaced by strict scrutiny. In a lot of cases, those intermediate standards helped change the culture towards one that could accept a broader standard of protection.

Quoted: Quoted: Quoted: Quoted: (snip)My experience is that most of the elite who go on to be judges have very little experience with firearms, and don't really know how to handle the issue.  They are concerned that they cannot come up with a way to negate some gun control laws without killing everything and having psychos running around with RPGs, so they duck the issue. Really? Scalia is a hunter. Yes, and, judging from the numerous threads here on hunters lately, we all know how well-versed hunters are in gun knowledge and how pro-RKBA they are.... I'd prefer a judge who owns and shoots an AK or AR, myself. Then he/she might know what he/she is talking about. Scalia is the MAN though. Trust me He is the best Justice on the Supreme Court. That guy is so much fun to listen to during oral arguments, because he has such a firm grasp on the Constitution and common sense that the liberal Justices get frustrated to the point of comedy.

+1

When I was in law school, the only dissents I read were by Scalia.

Scalia? I don't know how you can claim logical consistency between the opinion in Lopez and the opinion in Gonzales v. Raich (which was used as the basis to shoot down U.S. v. Stewart). If he wasn't willing to see the CSA challenged in that circumstance then I am really skeptical he is going to take any steps that would invalidate any current federal firearms law.

He might support an Emerson style "individual right with reasonable restrictions and all current restrictions are reasonable" type of decision; but I don't see him pushing the boundaries much.