“Strict scrutiny” seems to the the latest bugaboo of the victim disarmers, especially in Iowa. It’s been showing up in my 2A firearms news feeds a lot in recent weeks.

And here is a somewhat typical example (and yet, atypical in an important way).

TUESDAY TOPIC: Proposed gun amendment would make Iowa less safe
Strict scrutiny is the most demanding legal standard applied in constitutional cases. It requires judges to assume that a challenged policy is unconstitutional until the state proves otherwise. This legislation provides no exceptions, not even for laws prohibiting gun possession by violent offenders or for criminal laws that enhance sentences for crimes when a firearm is used.

“It requires judges to assume that a challenged policy is unconstitutional”

Unless Iowa has judicial procedures which greatly differ from those of the rest of the country, that appears — to this legal layman — to be a significant… mischaracterization of the meaning of strict scrutiny.

Strict scrutiny does not require a judge to assume a law is unconstitutional until proven otherwise. In fact, no level of scrutiny — intermediate or rational basis review imposes such a requirement.

What strict scrutiny does require is that a judge begin by determining whether a challenged law infringes on a constitutional limit, and — if so — apply a three part test, each of which the law must pass.

1. It must be justified by a compelling governmental interest, such protecting the public against a specific threat.
2. The law or policy must be narrowly tailored to achieve that goal or interest, to avoid unnecessary infringements.
3. The law or policy must be the least restrictive means for achieving that interest: there must not be a less restrictive way to effectively achieve the compelling government interest. Banning an entire class of firearms to prevent crime, when that class is rarely used in crimes, is not the least restrictive.

Basically, need, targeted at the problem, and doesn’t hurt anyone else. Think about that. Do you really want laws that aren’t needed, don’t address the problem, and punish those who aren’t responsible?

Strict scrutiny allows unconstitutional infringements if a judge decides it’s “close enough for government work.”

And that’s strict scrutiny, applied comparatively rarely. Intermediate and rational basis review can allow laws that aren’t needed, don’t address the problem, and punish those who aren’t responsible, which is why people-controlling victim disarmers hate strict scrutiny. Bottaro appears to prefer Intermediate scrutiny, in which restrictions on rights are merely “related” to the supposed need.

Or so I hope. A great many victim disarmers would much prefer presenting a “hypothetical” need.

Personally, I’d prefer another level of scrutiny: Constitutional. The test would be simple.

Does it infringe, even slightly, on an enumerated constitutional provision? If it does, it fails; go get a constitutional amendment. Because… just for example, the Second Amendment does not read “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed, unless there is compelling governmental interest to do so.”

If there is a compelling governmental interest which requires going against the Constitution, then there is a compelling governmental interest in presenting Congress and the States with a proposed constitutional amendment.

But I digress.

I said that example from Tim Bottaro is atypical of the “strict scrutiny” columns I’ve seen recently. That’s because the author blurb at the bottom of the column says that Bottaro is an attorney. Unlike the usual MDA/Brady-fed laymen who whine ignorantly about scrutiny, Bottaro should know better. In fact, Jackie Stellish, also writing from Sioux City, seems to have a better grasp of scrutiny than Bottaro. Or is more honest.

I wonder if an attorney so grossly misinforming the public is a matter into which the Iowa State Bar Association might wish to look.

[Permission to republish this article is granted so long as it is not edited and the author and The Zelman Partisans are credited.]

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