Peņa v. Cid (Handgun Roster) **CERT DENIED 6-15-2020**

[FABIO GETS GOOSED!!!]

I would simply adopt such an interest-balancing inquiry explicitly. The fact that important interests lie on both sides of the constitutional equation suggests that review of gun-control regulation is not a context in which a court should effectively presume either constitutionality (as in rational-basis review) or unconstitutionality (as in strict scrutiny). Rather, “where a law significantly implicates competing constitutionally protected interests in complex ways,” the Court generally asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests. See Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 402 (2000) (BREYER, J., concurring). Any answer would take account both of the statute’s effects upon the competing interests and the existence of any clearly superior lessrestrictive alternative. See ibid. Contrary to the majority’s unsupported suggestion that this sort of “proportionality” approach is unprecedented, see ante, at 62, the Court has applied it in various constitutional contexts, including election-law cases, speech cases, and due process cases. [citations omitted]

In the third sentence of this paragraph (in bold), the dissent instead approves a method of review that "asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests", right?

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Those cases are in the middle of a section where Breyer is advocating for what is clearly intermediate scrutiny.

Those cases are actually in the same paragraph I'm discussing with kcbrown, aren't they?

[Tincon]

In the third sentence of this paragraph (in bold), the dissent instead approves a method of review that "asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests", right?

No. Just as was done in Burdick, the dissent proposes that as a preliminary matter before applying scrutiny (in the case of Burdick, strict scrutiny), the court should examine certain factors, to determine if "the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests." This is independent of scrutiny. The Heller majority rejects this right along with intermediate scrutiny.

Those cases are actually in the same paragraph I'm discussing with kcbrown, aren't they?

Yes, they are part of a paragraph discussing when scrutiny should be applied. The rest of that section discusses what sort of scrutiny should be applied.

[kcbrown]

Right.

[FABIO GETS GOOSED!!!]

I would simply adopt such an interest-balancing inquiry explicitly. The fact that important interests lie on both sides of the constitutional equation suggests that review of gun-control regulation is not a context in which a court should effectively presume either constitutionality (as in rational-basis review) or unconstitutionality (as in strict scrutiny). Rather, “where a law significantly implicates competing constitutionally protected interests in complex ways,” the Court generally asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests. See Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 402 (2000) (BREYER, J., concurring). Any answer would take account both of the statute’s effects upon the competing interests and the existence of any clearly superior lessrestrictive alternative. See ibid. Contrary to the majority’s unsupported suggestion that this sort of “proportionality” approach is unprecedented, see ante, at 62, the Court has applied it in various constitutional contexts, including election-law cases, speech cases, and due process cases. [citations omitted]

When the dissent mentions the "'proportionality' approach" in the fifth sentence (in bold), he's referring to the method of review that he approved in the third sentence, isn't he?

[kcbrown]

When the dissent mentions the "'proportionality' approach" in the fifth sentence (in bold), he's referring to the method of review that he approved in the third sentence, isn't he?

Yes.

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Just as was done in Burdick, the dissent proposes that as a preliminary matter before applying scrutiny (in the case of Burdick

Just to be crystal clear here, your position is that the determination whether "the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important governmental interests" is just a "preliminary matter" the precedes the application of scrutiny?

[Tincon]

This sentence:

I would simply adopt such an interest-balancing inquiry explicitly.

[Tincon]

Just to be crystal clear here, your position is that the determination whether "the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important governmental interests" is just a "preliminary matter" the precedes the application of scrutiny?

What else do you think this means:

Under this standard, the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.

[Tincon]

Hey I answered your question, will you answer mine (I can wait 'till later, just want to know if I can look forward to that).

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What else do you think this means:

Is that a yes or a no?

[Tincon]

Is that a yes or a no?

Yes, in at least some cases. Otherwise you get, "it depends". It was certainly the case in Burdick , which was cited in your favorite paragraph in the dissent.

[FABIO GETS GOOSED!!!]

Hey I answered your question, will you answer mine (I can wait 'till later, just want to know if I can look forward to that).

Yes, I will.

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Yes, in at least some cases. Otherwise you get, "it depends". It was certainly the case in Burdick , which was cited in your favorite paragraph in the dissent.

Christ, now you're doing kcbrown edits too?

How about: is it your position that the determination whether "the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important governmental interests" is just a "preliminary matter" that precedes the application of scrutiny in 2A cases such as DC v Heller?

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Contrary to the majority’s unsupported suggestion that this sort of “proportionality” approach is unprecedented, see ante, at 62,the Court has applied it in various constitutional contexts, including election-law cases, speech cases, and due process cases.

Please quote the specific text "ante, at 62" where the majority "suggest[s] that this sort of 'proportionality' approach is unprecedented."

(Hint: last paragraph, first sentence.)

ETA: Link to Heller opinion here.