Scrutiny Yadda Yadda Yadda Outcome

September 17th, 2011

If you ask any constitutional litigator what the most important aspect of a case is, he will tell you, who bears the burden. This is currently the million dollar question in Second Amendment litigation, as the Supreme Court left open in Heller, and McDonald, what the appropriate tier of scrutiny is—the Court rejected rational basis, but left open strict or intermediate scrutiny.

In the nascent stages of the gender equality movement, then-Attorney Ruth Bader Ginsburg debated over whether to seek intermediate scrutiny, or strict scrutiny, for gender classifications.

If the state bears the burden, the individual has a chance to win. If the individual bears the burden, the state will almost certainly win.

I often think of the tiers of scrutiny in terms of the Yadda Yadda episode of Seinfeld.

Example A: The court finds that this right is not fundamental, rational basis applies, yadda yadda yadda, the government wins.

Example B: The court finds that this right is fundamental, strict scrutiny applies, yadda yadda yadda, the individual wins.

The key determination is how to characterize the right, and assigning the level of scrutiny. I contend that this choice—whether the individual, or the state bears the burden—is directly related to the respective liberty costs, or safety costs, of the asserted action. Social cost, even as a implicit cognitive bias of the Justices, directly impacts the slotting of the right. After this determination is made, the result is more-or-less foreordained.

But what happens when the Court finds that the safety costs are more-or-less congruent to the liberty costs? For this reason, the Court has crafted our intermediate scrutiny—a zone where the interests of the state, and the interests of the individual are much closer than the Court would like, and the determinations are tougher calls. This is currently the zone for gender classifications, and perhaps the future home for Second Amendment cases.