Interesting history on standard of review

Dave Hardy contributed to an Amicus brief in NYSRPA v. NYC. In it they give us a history lesson in how rational basis, intermediate review, and strict scrutiny of the constitutionality of laws came about. I found it fascinating.

This is the core of the lesson:

The use of multiple standards of review to evaluate the same statute is an import from First Amendment challenges to election laws, specifically ballot-access laws. See, e.g., Burdick v. Takushi, 504 U.S. 428, 434 (1992); Timmons v. Twin Cities New Party, 520 U.S. 351 358 (1997); Norman v. Reed, 502 U. S. 279, 288-89 (1992).

It is important to note that these election law cases address an unusual, indeed unique, constitutional problem.

On the one hand, elections involve the very core of First Amendment rights. “Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S, 1, 17 (1964). “[V]oting is of the most fundamental significance under our constitutional structure.” Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). Thus, the ordinary application of the First Amendment would use strict scrutiny to evaluate virtually all regulation of elections.

On the other hand, extensive government regulation is necessary merely to make elections possible, let alone fair. “[A]s a practical matter, there must be substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Storer v. Brown, 415 U.S. 724, 730 (1974). “To achieve these necessary objectives, States have enacted comprehensive and sometimes complex elections codes,” each part of which “inevitably affects – at least to some degree – the individual’s right to vote….” Anderson v. Celebreeze, 460 U.S. 780, 788 (1983).

It is hard to envision another First Amendment right that can only be exercised on a day and at a place dictated by the government, with expression restricted to making government-designated choices by checking boxes on a government-provided form.

They go on to explain that because the exercise of the right to keep and bear arms does not depend upon the existence of government regulation to be exercised in a meaningful way firearms laws should be reviewed using the “strict scrutiny” standard:

The dual standard of review used by the Second Circuit, and other courts, is thus taken from the unique setting of ballot-access laws. It is inappropriately
applied to the Second Amendment, a setting where the considerations that underlie ballot access regulations are inapplicable.

And in conclusion urges SCOTUS:

This Court should reverse the ruling below, reject its use of a dual standard of review.

My translation:

Shall. Not. Be. Infringed.


3 thoughts on “Interesting history on standard of review

  1. Well, that’s what you get when you have a constitution wrote, “By the People, For the People.” But only nine people are allow to understand it.
    They should also scrutinize ALL law with the same strict structure our forefathers wrote it in.

    • The best definition of the correct way to construe laws is from Thomas Jefferson:
      “Laws are made for men of ordinary understanding and should therefore be construed by the ordinary rules of common sense; and their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure”

  2. Yes, but “strict scrutiny” doesn’t translate to “shall not be infringed”. It translates, as best as I can tell, to “may be infringed if the state comes up with a convincing excuse for doing so”. (Contrast with “intermediate scrutiny” which translates to “may be infringed if the state comes up with any old half-assed excuse”.)

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