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.

In response to David Hogg:

You shouldn’t be able to by a gun, gun parts or ammunition over the internet.

I Tweeted:

A gun is like a book. Possession, use, and purchase is a specific enumerated right. You should be able to be purchase them any way, anytime, and anywhere.

That is my goal. Get used to it.

I’m getting a surprising large number of likes for that response.

I don’t have a problem with this:

The process of banning yourself from guns in Washington state is fairly simple. It starts with a person filling out a short form and presenting it, along with identification, at any county clerk’s office. After verifying the person’s ID, the clerk mails the document to the Washington State Patrol, which has 24 hours to enter it into the federal background check system, as well as the state’s crime database. If that person were to then try to impulsively buy a gun anyway, he or she would be denied.

Residents who waive their firearm rights also have the option to un-waive them — as long as it’s been at least seven days since the waiver was filed and they are not otherwise prohibited from gun ownership. They file another short form and wait for the state police to remove them from the system, which restores their ability to purchase a gun. The clerk and State Patrol must then destroy all records of the person’s initial waiver.

The waivers are designed to be confidential, and can’t be used in legal proceedings nor as a condition of employment or mental health treatment.

This would address some of the issues supposedly addressed by the “Red Flag” laws without the severe infringements associated with those type of laws. Sounds like a win-win to me. But you know the other side is not going to be satisfied with it. They don’t gain power and control over people with something like this. Still, it’s a useful litmus test to see if people are truly interesting in addressing the claimed issue or they want the power and control of the “Red Flag” laws.

It went into effect in Washington state as of January of this year. Since then only three people have used it. None have revoked the waivers.