I'd like to hear the opinions of our resident legal eagles on the word "fundamental "

[son of the revolution]

Hoping GL and granule will chime in here . So Sonia Sotomayor dodged the questions about the 2A by claiming that the word " fundamental " has a wholly different legal meaning , then the normal everyday usage one . TBH , this is probably the first time I've ever heard that particular claim . And while Im well aware of all the word games played within the practice of law , Im curious about her answer . It seems to me its more an artful dodge then a truthful explanation . So lets here it guys , is she blowing smoke up our collective asses ? Or does the word fundamental mean in legal terms that it applies to the States , which is her claim ?

[GunLawyer001]

"Fundamental" rights can't be infringed without the Court applying "strict scrutiny", the highest level of scrutiny, where the Court second-guesses the wisdom of a statute. The test for any law that infringes a fundamental right is that the law must be narrowly written to affect the fewest people in the most limited way that can achieve a compelling state interest.

There are 3 levels of scrutiny. Laws that infringe your right to mow your lawn will almost always be upheld, because the right isn't protected by the Constitution, so there just has to be some "rational basis" for the law.

There's a newer, intermediate level of scrutiny, for something that I recall is referred to as a "significant liberty interest", so there has to be more than just a rational basis, but less than the strict scrutiny level.

I haven't reviewed the cases lately, but "fundamental" rights are those explicitly mentioned in the Constitution, or at least the Court pretends that they are, by reading the secret "penumbral" version of the Bill of Rights that apparently contains the ACLU Wish List, and parts of the Communist Manifesto. The way the anti's usually get around that to protect their gun bans, is to pretend that the 2nd Amendment doesn't say that your individual right to keep and bear arms is mentioned in the 2nd Amendment. After Heller, this will be tougher to do.

[Vortex]

So Sonia Sotomayor dodged the questions about the 2A by claiming that the word " fundamental " has a wholly different legal meaning , then the normal everyday usage one.

Or does the word fundamental mean in legal terms that it applies to the States , which is her claim ?

"Fundamental" rights can't be infringed without the Court applying "strict scrutiny", the highest level of scrutiny, where the Court second-guesses the wisdom of a statute.

The way the anti's usually get around that to protect their gun bans, is to pretend that the 2nd Amendment doesn't say that your individual right to keep and bear arms is mentioned in the 2nd Amendment.

So by GunLawyer001's definition, is it true that the the Supreme Court has determined that the 2nd Amendment is not a fundamental right or is it just her opinion that it isn't a fundamental right?

[son of the revolution]

So by GunLawyer001's definition, is it true that the the Supreme Court has determined that the 2nd Amendment is not a fundamental right or is it just her opinion that it isn't a fundamental right?

My opinion is that the SCOTUS avoided the issue in Heller and we'll have to wait till the pending Incorporation under the 14th Ammendment case to reach them before they rule conclusively . Even Scalia went to pains to say that the majority decision didnt mean State or Local Govts were barred from ANY gun laws or restrictions ( such as prohibited persons ) .

Now , SCOTUS DID make it harder for the argument to hold water in the Heller ruling , because they did say for the first time that the right to own a gun was an individual right , not related to the militia , which is pretty much walking right up to the line of it being a " fundamental right " without actually calling it that .

Now that I read GL's post , I do remember quite a bit of talk yesterday during the hearings about the rational basis test vs the strict scrutiny test . Just didnt catch the part that a " fundamental " right was one that fell under the strict scrutiny definition . Thanks for the refresher GL