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View Full Version : 2A is individual right with strict scrutiny + Incorporation any changes in CA Laws?


pnkssbtz
08-07-2012, 7:20 PM
It's been almost 4 years since DC. v. Heller, and almost 2 years since McDonald v. Chicago.

The 2nd Amendment is acknowledged to be an individual right under strict scrutiny and incorporated under the 14th Amendment.


Both of these are in direct opposition to the the ruling in DC v. Heller as they both restrict firearms that are in common usage. Making both clearly unconstitutional. Why do we still have an Assault Weapon Ban and a Safe Handgun List?


This seems like a straight forward case to bring against both of these laws. Yet I haven't heard anything challenging either other than whispers to "wait 2 weeks".


Well, it's been 2 years.

njineermike
08-07-2012, 7:28 PM
You noticed that huh? It's amazing how we can have a direct ruling from SCOTUS and the silence is deafening. I mean, look at DC. 4 years later and they STILL don't really have any ability for common citizens to own a handgun there.

CAL.BAR
08-07-2012, 7:32 PM
Because the Heller court was very careful to restrict its ruling to HANDGUNS IN THE HOME. Nothing more. Secondly, Heller specifically indicated that States will ALWAYS be able to enact "reasonable" restrictions on the ownership/carrying of firearms. And CA seems to think its gun laws are pretty "reasonable". Never forget that "we" are a "fringe minority"... VERY minority in CA.

choprzrul
08-07-2012, 7:49 PM
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would notapply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which Justice Breyer would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.

Well, that pretty much sums it up.

.

nicki
08-07-2012, 9:55 PM
The lower courts are in rebellion, that is a given and we will have to slug it out through the appeals process to the SCOTUS.

The bad news is that we will have to fight for every shred of second amendment rights.

The good news is that the SCOTUS is probably keeping an eye on these developments and will cherry pick cases so that they can make substantial rulings.

We can see that they like good plantiffs and narrow cases so that they can rule point by point.

The fear of Justice Kennedy was that the lower courts would go overboard on applying the second amendment has been shown to be unfounded, as such we will probably get stronger rulings as we get more cases in front of the SCOTUS.

The SCOTUS does not like insubordinate lower courts and I would expect future 2nd amendment rulings will be extremely clear.

It will probably take many "vacated rulings" for the "lower courts" to get the message that the SCOTUS means business.

Nicki

pnkssbtz
08-08-2012, 12:57 AM
The lower courts are in rebellion, that is a given and we will have to slug it out through the appeals process to the SCOTUS.

The bad news is that we will have to fight for every shred of second amendment rights.

The good news is that the SCOTUS is probably keeping an eye on these developments and will cherry pick cases so that they can make substantial rulings.

We can see that they like good plantiffs and narrow cases so that they can rule point by point.

The fear of Justice Kennedy was that the lower courts would go overboard on applying the second amendment has been shown to be unfounded, as such we will probably get stronger rulings as we get more cases in front of the SCOTUS.

The SCOTUS does not like insubordinate lower courts and I would expect future 2nd amendment rulings will be extremely clear.

It will probably take many "vacated rulings" for the "lower courts" to get the message that the SCOTUS means business.

Nicki
How many decades is SCOTUS going to wait before they "mean business" and allow the lower courts to be insubordinate? Where is the "due process"?

goodlookin1
08-08-2012, 7:17 AM
It's been almost 4 years since DC. v. Heller, and almost 2 years since McDonald v. Chicago.

The 2nd Amendment is acknowledged to be an individual right under strict scrutiny and incorporated under the 14th Amendment.


Both of these are in direct opposition to the the ruling in DC v. Heller as they both restrict firearms that are in common usage. Making both clearly unconstitutional. Why do we still have an Assault Weapon Ban and a Safe Handgun List?


This seems like a straight forward case to bring against both of these laws. Yet I haven't heard anything challenging either other than whispers to "wait 2 weeks".


Well, it's been 2 years.

Since when? There have been indications that it might be subject to strict scrutiny after McDonald, but there is not much hard and fast evidence in the majority ruling to suggest that there is no other appropriate form of applicable scrutiny. The closest we got to strict scrutiny was the brief "fundamental" language, but that was about it. Yes, it helps....but it was not overtly spelled out that intermetiate or even rational basis CANNOT apply. And this is likely why we havent seen the lower courts rule on a strict scrutiny basis.

If we were, without a doubt, given strict scrutiny, wouldnt you think there would be a plethora of gun cases challenging just about all the current laws? Why is it that we dont see that happening, then? I'd suggest to you that it is because we cant guarantee that cases will be judged on a strict scrutiny basis, and we'd rather not set precedent where another form of scrutiny is preferred....