rule of lenity
The rule of lenity is a principle used in
criminal law, also called
rule of strict construction, stating that when a law is unclear or ambiguous, the court should apply it in the way that is most favorable to the
defendant, or to construe the statute against the state. The rule of lenity stems from two constitutional objectives: first, the
separation of powers, as it limits the scope of statutory language in penal statutes and does not allow the courts to establish the contours of a crime and its punishment. Second, the rule of lenity stems from the wish to
“protect the legislature’s constitutional lawmaking prerogative, and to limit the courts’ encroachment on a legislative function”.
Ambiguity in law=Must rule for the defendant. We all know the courts have had the 2 step scrutiny working in their favor for years. Now that NYSRPA V. BRUEN has struck down that precedent, the courts must prove licensing requirements were consistent with the Constitution's text, history, and tradition in 1791.
I would lean heavy on Murdock V. Pensylvania 1943
"A state may not impose a charge for the enjoyment of a right
granted by the Federal Constitution. ... a person cannot be compelled 'to purchase, through a
license fee or a license tax, the privilege freely granted by the constitution.'" Murdock v.
Pennsylvania, 319 U.S. 105, 113-114 (1943).
And
"The very purpose of a Bill of
Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place
them beyond the reach of majorities and officials, and to establish them as legal principles to be
applied by the courts. One's right to life, liberty, and property, to free speech, a free press,
freedom of worship and assembly, and other fundamental rights may not be submitted to vote;
they depend on the outcome of no elections." W.V. State Board of Education v. Barnette, 319
U.S. 624, 638 (1943)
And
These are the "arms" secured by Article 17 that the "people have a right to keep and to
bear," and these rights have never been legislated, or even submitted to a vote: "Where rights
secured by the Constitution are involved, there can be no rulemaking or legislation which would
abrogate them." Miranda v. Arizona, 384 U.S. 436, 491 (1966)