Posted 16 May 2019 - 06:12 AM
The amici brief makes essentially three points.
1. The right to keep and bear arms is not somehow of lesser importance than other, possibly socially favored, rights.
2. Whether tiered scrutiny is applied to this case or text/history/tradition is applied, either is enough to show that the lower courts' upholding of the NYC statute limiting transport of firearms fails the respective test.
The text/history/tradition standard is that "shall not be infringed" is a constitutional prohibition on government power against any law that restricts the right to keep and bear arms. As such, virtually no firearm law would be constitutional, including NYC's prohibition of transport of firearms.
The tiered scrutiny levels are about making rational laws that achieve their stated goals and, as applied to inalienable rights, constitutionally protected civil liberties are not an unlimited license to commit crime. Since there is no basis to establish that prohibiting legal firearm owners from transporting their firearms prevents them from committing any crime, the prohibition of transport is an unconstitutional infringement.
3. The brief provides several examples, including this case, of how other courts have purported to apply heightened scrutiny to second amendment cases, but the arguments supposedly substantiating heightened scrutiny have been a pretense for no such thing. It then provides examples for how heightened scrutiny should be applied, drawing similarity to several first amendment cases. It urges the court to provide stronger guidance to lower courts on how to apply stricter scrutiny to second amendment cases.
Personally, I think it's a good brief. The points it makes fulfill the dual purpose of resolving the case at hand as well as casting it in a broader context that makes it worth the court's time and effort. Urging the court to provide stronger guidance to lower courts is much needed, but I suspect a favorable decision in this case is still unlikely to be a detailed instructional example of how other courts should better decide second amendment cases. I also think the brief loses some steam bouncing between advocating strict scrutiny and at least intermediate scrutiny.
I also think NYC is going to lose. That NYC proposed amending its laws to forestall an unfavorable judgment makes me believe that NYC thinks it's going to lose, too. Depending how and to what extent the court shreds NYC's firearm permitting regime, it could have implications for spawning challenges to other firearm permits across the country.
The welfare of the people in particular has always been the alibi of tyrants, and it provides the further advantage of giving the servants of tyranny a good conscience.
- Albert Camus, Resistance, Rebellion, and Death, 1960.