Thursday, June 23, 2022

Quote of the Day — SCOTUS (June 23, 2022)

From the much-anticipated decision in New York State Rifle & Pistol Association, Inc., et al. v. Bruen, Superintendent of New York State Police, et al.:
Since Heller and McDonald, the Courts of Appeals have developed a “two-step” framework for an alyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many.
Let's be clear, this decision is huge. Read literally (i.e., not by weasel-worded lawyer-types), it declares "may issue" licensing schemes unconstitutional; nobody should be required to show "proper cause" or a heightened need for self-defense above and beyond that of the general populace.

But today's QOTD also throws out the Courts of Appeals adoption of differing "tiers" of scrutiny. We've seen terrible laws struck by lower courts applying "strict scrutiny", only to be upheld when the Courts of Appeal apply so-called "intermediate scrutiny" — which first measures whether a law could be Constitutional, and then does an interest-balancing exercise that gives the defendents a chance to show an "important government interest".

That second step has always seemed designed to allow a blatantly unconstitutional law to stand if the government can articulate some kind of public or safety concern, no matter how far-fetched, implausible, or disproven. Nevermind that "intermediate scrutiny" itself is questionable; the Constitution has no allowance for "important government interests". An unconstitutional law is still unconstitutional even if the government really, really wants it. Sometimes especially so.

I'm still reading through this landmark 135-page decision. I expect there will be more quotable material in the coming days.

Stay safe out there.