jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
I am skeptical NYSPRA will be so broad as to affect all 6 cases. That is extremely unlike the Roberts court.
My 0.02 is that NYSRPA was taken precisely because it is narrow and an extreme outlier, and some justices want to see how the vote goes before they take other cases.
I expect a pretty narrow opinion in NYSRPA along the lines of what the US Solicitor general submitted on the merits brief. If that happens, then vacating and remanding the other 6 does nothing more than give the lower courts leeway for more resistance, to say "see, they didn't say you cant, so the law must be ok." If they remand and give the lower courts instructions to use "history text and tradition" I not sure that the 3rd, 9th, 2nd actually know how to do that so I am not sure we are in a better position."strict scrutiny" is both unlikely to come from this court, and also is meaningless because judges can interpret strict scrutiny however they like. I cant recall whether its Gura or Kopel, but one wrote good piece on the 2A 2-step how "strict scrutiny" can mean rational basis depending on the judge. If you doubt me, One of the Bloomturd lawyers groups submitted a brief asking for means-end scrutiny. If they like it, I dont. Its a trap.
In my mind the only way the lower court resistance stops if when the Supreme Court takes a few more cases.
I think it is possible that the NYSPRA case will affect all six cases. The main issue in all the cases is how to properly apply scrutiny. Given the arguments, they may not really address this issue. Like all the 2A cases before it, the arguments don't really explain why the lower courts intermediate scrutiny analysis is incorrect. They just acknowledge that they should have used a different form such as strict scrutiny or text history and tradition. The US Solicitor General does not provide any additional analysis on this issue.
It is certainly possible to misapply strict scrutiny. I think the most famous case of this happening is Korematsu. It is directly relevant because they used the actions of a few to deny the rights of the majority. Public safety was the primary driver of the issue. The court deferred to the judgement of the government on the issue. This is the same reasoning used in the 2A cases. Nobody brings this up.
They fail to properly distinguish the issues. While the the government has an interest in public safety, they do not explore what that actually means. The interest is much more general than they acknowledge. They arrest people and put them in jail, but the government does not really protect any individual member of the public.
Additionally the governments data is like the Korematsu case. Only a few people negatively affect public safety and it is already illegal for those people to commit those acts. The vast majority of people do not negatively affect public safety. In fact the governments interest in public safety does not apply to the government data because the data is all about individuals.
How well the NYSRPA case will apply to these other six cases will depend on how well SCOTUS addresses the issue of the lack of data. If you correctly apply scrutiny, I believe you can get to the correct answer. I am not sure the cases have been argued well enough for SCOTUS to fully correct the misapplication of scrutiny but they will make it harder to do it in certain circumstances.