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View Full Version : ‎Scholarly paper — Minnesota Law Review: (mostly) pro-RKBA paper/article


Window_Seat
05-27-2012, 12:31 PM
A highly recommended read.

http://ssrn.com/abstract=2066941

This paper addresses Heller and McDonald, and the standard of review that courts should be using when determining each case individually.

Calls for strict scrutiny on "may issue" carry where the issuing authority only licenses those who can demonstrate a narrowly defined special need to carry a firearm in public for self defense, and notes that it should be the only standard of review. Notes (n. 149) CA P.C. § 12050, and the standard that some issuing authorities use in the form of denials willy nilly unless one is "special".

"Perhaps the most troubling implication for the individual’s right to self-defense under a may-issue permit system is that the right becomes contingent upon the ability of the applicant to convince a government official that one “really needs” it. In free-speech cases, it would be unthinkable to require book publishers or newspaper editors to show a censorship office that they have a “justifiable need” to publish a story, or that they possess the “good character” to exercise the right to a free press." (Golden, 2012, p. 128)

Says that certain non-violent persons who were convicted of Misdemeanors should not suffer permanent disarmament by the government because it makes no sense to completely disarm a law-abiding person because of limited past misconduct, and calls for strict scrutiny in cases of non-violent misdemeanors being completely banned from exercising their RKBA.

Implies that the government's severe burdening of the core right outside the home because of the existence of criminals who are considered prohibited is something that strict scrutiny should be applied.

Calls for intermediate scrutiny in sensitive places limited to specifically defined secured areas such as airports and government buildings where armed security is tight.

Golden notes in several different areas, the Illinois complete and absolute severe burden on RKBA outside the home, and the fact that it is the only state without a licensing scheme. (p. 105, 126).

The big blow (in my opinion) is that Golden's notes on private property rights of proprietors to directly burden the right by posting a sign that prohibits any kind of weapons, and that the judiciary need not even apply intermediate scrutiny, even in the context that the government is codifying a way for the proprietor to erect the policy with no restrictions. The professor mentions a parking lot storage statute (n. 142). I would like to have had him address the issue of employers who send goods delivery employees into areas of known criminal activity (like the Trucking Industry).

All in all, an enjoyable and fascinating paper discussing the standards of review tests that the courts should apply when dealing with particular burdens on the Second Amendment, and as compared with the First Amendment context. Notes case law.

"And the method to determine whether a regulation’s burden is direct or incidental is just as simple: If law-abiding citizens wishing to arm themselves obey the challenged restriction, is there a reasonable likelihood that at the moment of a criminal attack the victims will be without immediate access to a weapon because they obeyed the law? If the answer is yes, the burden is direct; if the answer is no, the burden is incidental. Such a test would serve an appropriately similar purpose to subjecting content-based restrictions to strict scrutiny in the First Amendment arena." (p. 133)

"Laws giving state officials vague or subjective discretion to deny permits; regulatory schemes creating unreasonable delay, expense, or complication prior to legal possession or carry of firearms; excessive time, place, or manner restrictions generally impeding the ability to legally defend oneself; and laws permanently stripping gun rights based on a minor or nonviolent criminal record should all fall into this category. And they should not survive." (p. 140)

Erik.