The Court also says that the history of the right to keep and bear arms shows that the right is fundamental and not subject to interest balancing.47 But traditional tests for many fundamental rights are, in fact, balancing tests.48 Speech, bodily integrity, and voting are all fundamental rights. These fundamental rights are evaluated by reference to levels of scrutiny.49 And all traditional levels of scrutiny50 require some explicit evaluation of the government interest. Strict scrutiny, for example, requires that a regulation be “narrowly tailored to promote a compelling [g]overnment interest.”51 Intermediate scrutiny requires that a regulation be “substantially related to an important governmental objective.”52 As Judge Kavanaugh wrote in his recent dissent in Heller II, these familiar types of scrutiny “involve at least some assessment of whether the law in question is sufficiently important to justify infringement . . . . That’s balancing.”53 The Heller and McDonald majorities appear reluctant to permit judges to conduct any balancing,54 even using these traditional modes of scrutiny.55 (Judge Kavanaugh takes this position in Heller II and other judges have echoed his conclusion.56) Given the majorities’ reluctance to apply even well-established modes of scrutiny in Heller and McDonald, it is likely they will be even more skeptical of exotic new balancing tests in Second Amendment cases.57
Even more perplexing, the quintessential government interest, public safety,58 has no special bearing on the scope of the right to keep and bear arms. At least, it appears to have no more bearing on the Second Amendment’s scope than it does on any other constitutional right.59 So, even if a court were to analyze a certain regulation using a forbidden balancing test, it is unclear what weight, if any, public safety adds to the scale.