Op-Ed: Heller decision - Deeper Analysis

"Strictest Scrutiny" Found in the Fine Print

Many Other Assets Revealed After Study

By Alan Korwin

In my haste to post an initial review of the Heller decision, many juicy points were overlooked. This was expected. With time to read and digest the opinion, some wonderful elements have emerged.

...June 26 was a great day for human rights and freedom and a terrible day for The New York Times. (The Times has promoted an anti-rights agenda for decades.)

Bogus anti-rights arguments we have endured for about four decades have had a stake driven through them. Collectivism, militia requirements, uselessness of sidearms, improper readings of 2A, revisionist history, rights-denial as a crime remedy, "the gun lobby lies about 2A," even "an individual right means you can own an atom bomb," all dead. Did I mention hoplophobia is irrational?

The human right to self defense has received unequivocal support. This is especially important since the U.N. does not recognize this right.

Criminals and crazies remain under strict legal controls, despite lunatic claims to the contrary.

Handguns are fully recognized as "the quintessential self-defense weapon."

Future efforts to deny these crucial civil rights will be severely chilled (though their advocates may be energized, as we would if we had lost).

The list of weapons useful for a militia -- armed citizens capable of being called up in an emergency to serve with their own weapons -- remains ambiguous. To wit:

Legal-eagle friends are confused, in disagreement and debating what the actual holdings are exactly, such as whether the Second Amendment is incorporated against the states, and similar fine points. I take an expansive view and encourage rights advocates to do the same. Do NOT yield ground on any points in your preliminary positions -- take the highest ground concerning what the decision means, and make the antis fight uphill against you. Push the envelope in the direction of greater freedom. The finding of a specific enumerated right of course means other jurisdictions are affected even if the 14th Amendment isn't specifically invoked -- it doesn't need to be.

...The core issue of "judicial scrutiny" is now established -- better than we had dreamed -- in what will be known as Famous Footnote #27 (p56). Laws impinging on the Second Amendment can receive no lower level of review than any other "specific enumerated right" such as free speech, the guarantee against double jeopardy or the right to counsel (the Court's list of examples).

This is a tremendous win, and overlooked in all initial reviews I've seen. Attorney Mike Anthony was the first to spot it, way to go Mike. "Strict scrutiny," which many folks sought, is a term without formal definition that could prove problematic. I was hoping for a test of some sort and got more than I hoped for. By recognizing 2A as a "specific enumerated right" the majority ties 2A to the rigid standards and precedents of our most cherished rights. That's as strong as there is. Very clever indeed.

Coupled with the Court's destruction of a scrutiny scheme invented by Breyer in his dissent, 2A protection is now extra robust (but antis will continue their attacks)...

Critics and anti-rights advocates are almost gleeful at the Court's acceptance of Mr. Heller's request for registration and a license to carry his gun in his own home, as long as the terms aren't arbitrary or capricious. Agreed this is a weak and unsavory intermediate step with potential for abuse, while on the way to greater freedom than D.C. currently has. It has a very dangerous potential for abuse that will be exploited. Antis will try to imply that registration and licensing are more than OK, they are the new standard. This is completely false...

...Detailed, step-by-step review of the decision, the dissents, and the events leading up to the case will form the heart of my next book, "The Heller Case: Supreme Court Gun Cases Volume 2." Leading experts will contribute their view of where the Heller case will lead us, and suggest a course of action for using this landmark decision in defense of liberty. Every gun case the Court has ever heard -- all 96 -- will be discussed, along with summaries of all 66 amicus briefs filed in the Heller case, and the full text of the case. Hundreds of juicy quotes from Heller will be highlighted for easy reading and navigation through the thick legal discussions.

Click here to read the entire analysis from The Uninvited Ombudsman.