Disir
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- Sep 30, 2011
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This year, for the first time in nearly a decade, the Supreme Court will return to the subject of the Second Amendment. New York State Rifle & Pistol Association, Inc. (NYSRPA) v. City of New York concerns a New York City licensing regime that, at the time the Court granted review, prohibited the transportation of any firearm outside city limits. (The City subsequently changed its licensing regime, perhaps in an effort to make the case go away before the Court could rule on the merits. It is unclear, at the time we write, whether that tactic will succeed.) Although most popular attention will focus on the outcome of the case, the long-term significance of NYSRPA could be how the justices arrive at that outcome, for NYSRPA poses a challenge to what has become a familiar feature of American constitutional law: the tiers of scrutiny.
The tiers of scrutiny are elements of a method of constitutional analysis in which courts examine the goal that a law purports to achieve and the means the law uses to accomplish it. It is usually said that there are three tiers. "Strict scrutiny," as the name implies, is the most stringent — it places the burden on the government defending a law to, first, identify a compelling governmental interest and, second, show that the means chosen by the government are narrowly tailored to achieve that interest. Laws that discriminate on the basis of race or viewpoint, for instance, receive strict scrutiny. So in theory, under current doctrine, a law that discriminates on the basis of race would be constitutional if the government could meet the two criteria of strict scrutiny. "Intermediate scrutiny" is similar to strict scrutiny, but the government's burden is reduced; generally, the government must show both an important or substantial interest, and that the means chosen to advance that interest are no more burdensome than reasonably necessary. Laws that discriminate on the basis of sex and content-neutral speech restrictions, for example, receive this form of scrutiny. Finally, a law will survive the third and lowest tier, "rational-basis review," if there is any conceivable, rational reason supporting the law. Rationality review is highly deferential and applies to many (perhaps most) economic regulations.
Against the Tiers of Constitutional Scrutiny
This is a long article but it's interesting.
The tiers of scrutiny are elements of a method of constitutional analysis in which courts examine the goal that a law purports to achieve and the means the law uses to accomplish it. It is usually said that there are three tiers. "Strict scrutiny," as the name implies, is the most stringent — it places the burden on the government defending a law to, first, identify a compelling governmental interest and, second, show that the means chosen by the government are narrowly tailored to achieve that interest. Laws that discriminate on the basis of race or viewpoint, for instance, receive strict scrutiny. So in theory, under current doctrine, a law that discriminates on the basis of race would be constitutional if the government could meet the two criteria of strict scrutiny. "Intermediate scrutiny" is similar to strict scrutiny, but the government's burden is reduced; generally, the government must show both an important or substantial interest, and that the means chosen to advance that interest are no more burdensome than reasonably necessary. Laws that discriminate on the basis of sex and content-neutral speech restrictions, for example, receive this form of scrutiny. Finally, a law will survive the third and lowest tier, "rational-basis review," if there is any conceivable, rational reason supporting the law. Rationality review is highly deferential and applies to many (perhaps most) economic regulations.
Against the Tiers of Constitutional Scrutiny
This is a long article but it's interesting.
