Because the right is Constitutionally guaranteed, it's a HUGE stretch to say that the 2A (and its state analogs) deserve anything less than strict scrutiny when it comes to legislative challenges. You say that, and you are either singling out the 2A on a qualitative basis despite it being incorporated and enumerated, or you are placing the 1A, 3A, 4A etc, on shaky ground. There's no middle ground here, "arms" are protected by Constitutional Amendment...as are "keeping" and "bearing". It's intellectually dishonest to try to suggest that the 2A wasn't meant to apply as strongly as the other Amendments.
So far, last i checked, general "public safety concerns" are ever-present and ubiquitous...and would therefore NOT pass muster against strict scrutiny. The Terry stop and pat down is an example of a slight nod given to safety that treaded upon 4A rights...and it was really just for officer safety. PC is still required for arrest/seizure. The Courts in the 4th and 2nd Circuits are really boxed in and trying hard to dodge in terms of the 2A. Judge Posner (7th) wasn't isn't afraid to maintain his judicial impartiality on this one when it came to Moore v. Madigan. Maaaybe you might see a "public safety exception" attempt on the 2A...but it will be equally intellectually dishonest because there's nothing emergent about deciding whether as a general rule people should be permitted to keep and bear arms.
The brief doesn't address the burden-shifting effect of the levels of scrutiny...or maybe I breezed past it...I find the burden-shifting issue to be quite compelling.
Rational Basis ===> PLAINTIFF has to show that there is NO rational basis for the Govt's infringement (this is for pretty much any old law you might find, registering your car, insurance requirements, etc.)...this is wholly inappropriate for a Constitutional Amendment...and the Courts know it and will have to fashion a MAJOR exception to their prior jurisprudence if they want it to be the citizens' burden to prove that they are protected by an Amendment which is specifically directed to limit government action. The govt has a low bar and generally wins.
Intermediate Scrutiny ====> GOVERNMENT has to show that the law is "substantially related to an important government purpose"...this is where you start to get into laws against gender discrimination, equal pay, things that look and feel quite serious and require the Government to really lay out why it is that the Plaintiff should have to abide by the law. This is also the lowest level where the BURDEN SHIFTS to the Government/Defendant to prove out the law. So, if the government says that marriage equality or equal pay should be afforded to all couples and genders...and an employer challenges because his employee benefits premiums might increase, the Govt has to show that despite this...the Govt's interest is important. That's why the Govt usually wins these civil rights cases. It is for feelgood stuff that makes us America and not third-world hellholes. The govt has the burden, and generally wins.
Strict Scrutiny =====> GOVERNMENT has the burden of proving that the law is "necessary in order to achieve a compelling government purpose" AND that the law is the "least restrictive" and least discriminatory means for accomplishing this purpose. As you can guess, a the Govt usually loses these battles. We're talking about 1A, 4A, 5A infringements...where the govt really tries to roll back enumerated or fundamental rights. What you get are tiny carve-outs that give the Govt a small nod, but largely limit their ability to skirt the Amendments. This is why we have exceptions to the protections like plain view doctrine, walking a dog around the outside of the car to sniff for drugs, etc...because we can't COMPLETELY tie the Govt's hands if they are expected to look after the population. I'm not making a value judgment, just stating the reasoning often used. The SCOTUS is expected to jealously protect these foundational Amendments and rights against governmental impingement.
The takeaway that I wish we saw more often is that PLAINTIFFS DO NOT HAVE THE BURDEN of proving anything in 2A cases. Whenever a judge's decision regarding a 2A issue states that the "plaintiffs have failed to prove"...he's in rational basis land and ignoring the overwhelming SCOTUS jurisprudence on Bill of Rights matters. All a plaintiff has to do is say "hey, Virginia, FL, PA, CT etc ALL issue permits...NYC/MD/NJ haven't shown why their scheme is the least restrictive/discriminatory"...then kick their feet up and wait for the Govt's histrionic attempts to dodge their burden by trying to scare the court that the streets will turn into the bank robbery scene from "Heat"...they haven't and they won't.
The GOVERNMENT, once challenged, has to meet the burden...not the plaintiff. With so many OC/CC states across the country, largely decreasing crime nationwide despite the proliferation of carry friendly states, it's going to be EXTREMELY difficult to say with a straight face that "good cause" requirements and NYC-style constructive bans are the "least discriminatory" alternative for meeting a compelling government purpose (public safety) which is universal, accepted as a fact of life and being met in states that do issue carry permits. This is why the 2nd and 4th are so loathe to grant strict scrutiny to the 2A...it's fatal to bans.
Now, there's a ton of inside baseball regarding the granting of cert by the SCOTUS...the clerks really have quite a bit of power here and the SCOTUS gets a ton of requests. With the split plain as day, it's only a matter of time before someone's writ is granted...then it's just a matter of what the makeup of the court is. The simpler the better..."do laws infringing upon the 2A deserve strict scrutiny, intermediate or rational basis treatment?"
