That said, it does seem like a fundamental right by the Carolene Products definition : it’s listed within the first ten amendments, exists outside of the presence of the federal government, and is not an internal aspect of the court. It should be a matter of strict scrutiny, if it uses the same methods as the protections recognized by the First Amendment.

That said, I’d be surprised if the court finds such. If Kennedy was willing to sign to strict scrutiny, I can’t see Scalia avoiding the subject. Chances are better they’ll just keep fishing the subject around.

I can’t think of any cases I’ve read where the court invalidated a law using such a test.

“City of Cleburne v. Cleburne Living Center, Inc.”, and an impressive case in New Jersey, for example. It’s very hard to fail rational basis, but it’s not impossible.

I’m not a constitutional law scholar or practitioner.

Thanks for making that obvious.

Strict scrutiny is the highest level of review and it is almost impossible to pass.

Ah, no. Lawyers tend to call it such, but it’s neither the highest level or review nor unlikely to be bypassed — it doesn’t match up with the scrutiny set for prior restraints on free speech, often called “superstrict scrutiny”, nor instantly fatal. Thirty percent of laws facing strict scrutiny challenges get through the courts in one piece, and a majority of religious burden tests survive.

And it is almost never applied outside of 14th Amendment cases involving racial classification.

It’s invoked in every case involving fundamental rights or suspect classifications — that includes cases with no actual racial classification, only racial effects (Yick Wo v. Hopkins) or effects based on nationality, cases involving the content but not the time or place or manner of free speech (over 200 cases, including such as Street v. New York), and other fundamental rights such as religious freedom, freedom of association, et all.

Ever since strict scrutiny was invented, the S.Ct. has been backing away from it, which is why sex/gender discrimination under the 14th Amendment is covered by intermediate scrutiny.

Since the case Mississippi University for Women v. Hogan, gender discrimination has been treated on a level closer to strict scrutiny than intermediate scrutiny. The courts have not been backing away from strict.

Instead, various balancing tests are used. In the first amendment context, for example, courts weigh the appropriateness of time, place and manner restrictions, look for narrow tailoring, etc.

Er, no, they don’t. Time, place, and manner restrictions are held under intermediate scrutiny, meaning that they are only acceptable “if important governmental interests… are furthered by substantially related means”. It doesn’t matter what the degree of the time, place, and manner restrictions are, or the important governmental interest is, only that the connection exists. The burden can be massive and the benefit minimal. It’s not a balancing test, and only strict scrutiny requires that the law focus on being narrowly tailored.

But I’m not aware of any S.Ct. application of strict scrutiny to any enumerated rights.

And while it’s true that footnote 27 says 2nd Amendment laws must pass a test higher than rational review, that test will likely be some sort of balancing or line-drawing test, just like with all the other enumerated rights.

The only enumerated right that’s limited by a balancing test is that of due process (and arguably copyright, depending on whether you find that enumerated). Free speech restrictions not based on time, place, or manner restrictions face strict scrutiny, and have for most of the last century. Freedom of association and freedom of and from religion tests face strict scrutiny.