National USDOJ posts brief in support of 2a in NY case

[OldTengu]

Read more: U.S. Justice Department Submits Brief in Support of Second Amendment

U.S. Justice Department Submits Brief in Support of Second Amendment

Can't be mad about this.

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[awshoot]

On the question of scrutiny, the DOJ memo echo's Benitez' "hardware test" logic in the CA mag ban case:

The court of appeals also held that the transport ban was constitutional because it satisfied the court's sliding-scale test for applying the Second Amendment. ...

There is no need to decide in this case whether or how to import doctrinal tests from other contexts into Second Amendment adjudication. At a minimum, these tests should supplement, not supplant, an analysis of the constitutional text, history, and tradition. As this Court explained in Heller, a law that clearly contradicts text, history, and tradition would be unconstitutional under "any of the standards of scrutiny" that "appl[y] to enumerated constitutional rights." 554 U.S. at 628. And as the Court has explained elsewhere, it is "unnecessary" to turn to " 'formal tests' " where "history" definitively resolves the constitutional issue at hand. Town of Greece v. Galloway, 572 U.S. 565, 575 (2014) (citation and internal quotation marks omitted). In this case, as in Heller, text, history, and tradition definitively establish the unconstitutionality of the City's near-total ban on the transportation of handguns outside the home.

EDIT: greened some text to correspond with a different comment below.

 

[awshoot]

On the issue of the test the Courts of Appeals have been using to exterminate the 2A:

Moreover, the particular mode of analysis that the court of appeals applied — a sliding-scale standard under which a court uses a threshold, case-by-case evaluation of factors to select a level of scrutiny — itself conflicts with this Court's precedents. In Heller, this Court explicitly rejected Justice Breyer's proposal to evaluate gun-control laws under an "interest-balancing inquiry,with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other," 554 U.S. at 689 (Breyer, J., dissenting). Observing that it could identify "no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach," the Court explained that "[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth in-sisting upon." Id. at 634. And the plurality in McDonald confirmed that the Court in Heller had "expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing." McDonald, 561 U.S. at 785.

 

[awshoot]

And on intermediate scrutiny, should it rear its ugly head:

Even assuming that the Court should apply intermediate scrutiny to assess the City's stated interest, moreover, the transport ban would still violate the Second Amendment. The City claims that the transport ban promotes public safety by enabling the police "to monitor and enforce the limited circumstances under which premises licensees can possess a handgun in public." Br. in Opp. 22. The City, however, fails to establish that it has an important interest in ensuring that people transport locked and unloaded firearms only in "limited circumstances." The City claims that it must limit firearm transportation because some holders of premises licenses may be " 'susceptible' " to " 'stressful situations' " — such as " 'crowd situations,' " " 'family disputes,' " and "road rage" — " 'where it would be better to not have the presence of a firearm.' " Pet. App. 26 (citation omitted). Under intermediate scrutiny, however, the government must "demonstrate that the harms it recites are real," rather than "speculat[ive]." Edenfield v. Fane, 507 U.S. 761, 770-771 (1993). The City has made no effort to show that license-holders often find themselves in "stressful situations," no effort to explain why license-holders are more likely to face these "stressful situations" when traveling to out-of-city firing ranges than when traveling to local ones, and no effort to demonstrate that license-holders (who have passed rigorous background checks) are apt to misuse firearms that are locked and unloaded when they confront such "stressful situations."

 

[awshoot]

Nice brief. ;-)

 

[GWS]

This is great!
I hope and pray that the Supremes definitively state that "Shall not be infringed" will be the rule of law.

 

[awshoot]

This is great!
I hope and pray that the Supremes definitively state that "Shall not be infringed" will be the rule of law.

I'd love to see them endorse Benitez' hardware test in the words he used:

It is a hardware test. Is the firearm hardware commonly owned? Is the hardware commonly owned by law-abiding citizens? Is the hardware owned by those citizens for lawful purposes? If the answers are "yes," the test is over. The hardware is protected.

Right above that passage, Benitez cites Kavanaugh's dissent in the Heller II decision (not the original, this is the second one at the Court of Appeals following the Supereme Court Heller decision) -- note how this refrain is repeated in the brief as noted above (see green text):

In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.

 

[nammac]

For the love of gawd, let this get settled once and for all by the SCOTUS, that citizens have the right to own, use and carry commonly owned firearms. It needs to be settled in an unquestionable manner...