Disarming the citizenry vs. the right to keep and bear arms

[Sanford Levinson]

Frank Cross writes:

I
>think that most of the 2nd Amendment debate misses the key point.  Even if
>it's an individual right, that doesn't preclude gun control measures does it?
>
Of course it doesn't "preclude" gun control measures.  But what standard of
scrutiny should be applied either by conscientious legislators (assuming we
take the notion seriously) or reviewing courts.  I.e., most proponents of
gun control believe that minimum rationality is enough.  Those who take the
2nd amendment seriously would, I presume, believe that strict scrutiny is
necessary.  Or, of course, one could end up with one of the in-between
standards that all of us are familiar with.  But the fact is that many gun
control measures could not possible pass strict scrutiny unless one places
so much import on the social value asserted--the decline of violence--as to
be unconcerned with minor empirical detailsl like the plausibility of the
argument that the given measure will in fact be an effective means toward
reaching the end. See, e.g., the debate about the "assault weapons ban" in
1994 that almost certainly made no contributionn at all to reducing the
illegitimate use of guns or the violence attached thereto.  (As a side
point, I think there is also good evidence that its major consequence  was
costing the Democrats the House of Representatives (and, almost certainly,
costing Tom Foley his seat), but I realize that this is of no interest to
law professors.)

sandy levinson