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They need a case that Kennedy will rule on the side of strict scrutiny. That's a pretty tall order.
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Getting that case might be tough, but I disagree it is what we need. Most federal courts seem to be
adopting a level of scrutiny that is at least intermediate, but tends to shift towards strict when the
law amounts to a per se ban on weapons useful for defending the home. Another decision reinforcing
this test would be a large victory. Forcing the federal and state governments to meet even an
intermediate level of scrutiny would likely cause many existing laws to fail, including some very old
and well established laws. I don't see any way the court rejects this developing standard outright
while demanding a rational basis test. For that to occur, Heller and McDonald would essentially have to
be overruled. In exchange, we hopefully get clear guidance to lower courts that some sort of elevated
scrutiny is required.
I don't see Kennedy as necessarily hostile to such a case given his previous decisions.