Given that the Supreme Court held that the Second Amendment protected the “fundamental right” to possess arms in defense of the home, some courts have reasoned that strict scrutiny should apply to gun laws.
These courts usually argue that fundamental rights automatically trigger strict scrutiny. Descriptively, the courts are wrong; in numerous areas of constitutional doctrine the Supreme Court has held that a right is “fundamental” but that some other, lesser standard of review applies.
Although nearly all of the Bill of Rights has been applied to the states on the grounds that the rights involved were “fundamental,” strict scrutiny is
only applied in cases arising under the First and Fifth Amendment in the Bill. Strict scrutiny is not applied in cases arising under the Fourth, Sixth, Seventh, Eighth, Ninth, or Tenth Amendments. Even in the First and Fifth Amendments, strict scrutiny is only used selectively, with less demanding standards applied to, among other things, restrictions on commercial
speech, content-neutral speech laws, sex discrimination, generally applicable laws burdening the free exercise of religion, and takings of property.
Although strict scrutiny is often called “„strict‟ in theory and fatal in fact,”
to date no court applying strict scrutiny under the Second Amendment has invalidated a gun control law. The underlying governmental end of nearly all gun laws is public safety, which is clearly a compelling government interest. The narrow tailoring prong of strict scrutiny, which is often the
greatest hurdle for challenged laws elsewhere in constitutional doctrine, has not proven to be a significant barrier for gun control yet. In some cases, the courts merely conclude the law satisfies the narrow tailoring requirement without much analysis. In other cases, narrow tailoring is satisfied by the fact that the challenged laws are not applied broadly to the public at large but target a narrow class of gun owners. In United States v. Erwin, for example, the district court explained that prohibitions on possession by people subject to a domestic violence restraining order are narrowly tailored because the ban only applies after a court determines someone is a
“credible threat to the physical safety” of an intimate partner or child.
As a result, the federal law imposed “narrowly crafted limits on when a citizen may possess a firearm.” Other courts reason that because the Supreme Court acknowledged the validity of felon possession bans even
though many felonies do not involve violence, any law more precisely tailored than the felon ban satisfies strict scrutinyÂ’s fit requirement.
http://www.acslaw.org/files/Mehr and Winkler Standardless Second Amendment.pdf