Reference no: EM133903953

Question

A Better Alternative? Could the difficulties Justice Breyer highlights be avoided had the Court embraced the kind of tiered scrutiny that is a common feature of its other individual rights doctrines? Despite his Heller dissent, which seemed to favor a more deferential interest balancing approach, his Bruen dissent seems almost to have welcomed the adoption of strict scrutiny in Second Amendment cases as opposed to the history-and-tradition test the majority adopted. "Courts," he wrote, "must be permitted to consider the State's interest in preventing gun violence, the effectiveness of the contested law in achieving that interest, the degree to which the law burdens the Second Amendment right, and, if appropriate, any less restrictive alternatives." If you were a district court judge or a judge on the court of appeals, and you were hearing a Second Amendment challenge to a state law banning high-capacity magazines, which approach would you rather apply?