Saturday, June 3, 2017

Where Intermediate Scrutiny Takes You

Bauer v. Becerra (9th Cir. 2017) upheld California's allocation of $5 of the $19 Dealer Record of Sale fee to the Armed Prohibited Persons System, which looks for people who legally purchased a firearm, but have since ended up in a firearms prohibition category.  The 9th Circuit agreed that the Second Amendment protected an individual right, but applied intermediate scrutiny.  The purpose was tied to a legitimate governmental interest (public safety) and the portion of the DROS fee allocated was not a burden on buyers of firearms.

No question that the interest is a legitimate government concern and unless are buying a $20 gun (tell me when you see one), it is hard to see the $5 as much of a burden.  The real flaw is that the various standards of scrutiny are largely made up by 1960s judges as a way of striking down laws they did not like (strict scrutiny), while upholding laws they like (rational basis, intermediate scrutiny).

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