Now, while Brown (grudgingly) accepts that a rational basis analysis is required, she prefers rational basis with bite, which entails the "means scrutiny" that she talked about (i.e., determining whether a law actually furthers its stated purpose). Apparently this is the approach that her court had been using up until a few years ago. That's what she's talking about in her 2nd paragraph. Here:
In Warden, a majority of this court abandoned our longstanding commitment to "serious and genuine judicial inquiry" into equal protection claims in favor of the highly deferential rational basis formulation articulated by the United States Supreme Court. Under the standard adopted by the Warden majority, "[I]n areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. Where there are 'plausible reasons' for [the classification] 'our inquiry is at an end.'"Brown dissented in that case, preferring not to abandon the higher standard of review.
We're dealing with three different levels of scrutiny here:
1. Strict Scrutiny. This is the one we (and I think Justice Brown) want but can't have.
2. Rational Basis. This is what the majority opinion was based on (following that Warden decision that I just mentioned above).
3. Rational Basis with Bite. This is the type of rational basis analysis that Brown thinks the court should've used, and it's what her concurrence is based on. It's a higher standard of review than #2.
I really can't pick out the part where she concurs. Can you point it out?
The law survives the equal protection challenge even under Brown's "rational basis with bite" analysis. She says
[P]laintiff's claim that the ban is irrational because it will have no effect on violent crime proves too much. The insistence upon a rational relationship between selected legislative ends and the means chosen to further them cannot be so exacting. To declare murder a crime will not prevent murder. Prohibiting the possession of weapons by convicted felons will not stop criminals from obtaining guns. Assessing ever greater penalties has not eliminated the scourge of drug abuse. Means scrutiny assumes the law will have some effect and compares that effect with the means the Legislature has chosen. Were courts to overturn every legislative action that is likely to be ineffective, few laws would survive.Right there's the concurrence.