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View Full Version : GA Supreme Court, Hertz v. Bennett, Nov 2013


Librarian
11-04-2013, 2:37 PM
Per Volokh - http://www.volokh.com/2013/11/04/georgia-supreme-court-justices-second-amendment-carrying-guns-public-felons/

Published opinion: http://www.gasupreme.us/sc-op/pdf/s13a1288.pdf

What Volokh highlights, from the concurrence:But no one should misunderstand the Court to suggest that the constitutional guarantees extend only as far as the home. To the contrary, the Court today applies intermediate scrutiny to OCGA § 16–11–129, and in so doing, it acknowledges that the constitutional guarantees secure a right to carry firearms in public places, even if that right might be more limited than the right to keep firearms in the home.

six seven tango
11-04-2013, 2:59 PM
Nice. Too bad we can't get that kind of opinion on the federal level.

What are the chances of Hertz appealing? Would that be a good thing for us, or could it backfire?

penguin0123
11-04-2013, 3:46 PM
Someone explain to me why it is a good thing they applied intermediate scrutiny to a 2A case?

speedrrracer
11-04-2013, 4:39 PM
Someone explain to me why it is a good thing they applied intermediate scrutiny to a 2A case?

Well, it's a step up from the rational basis reach-around we've been getting :shrug:

I haven't read enough yet to say, so perhaps there were other factors?

LoneYote
11-04-2013, 7:39 PM
Page 9 says it all

The law being challenged here does not involve the core Second
Amendment right to possess a firearm for self-defense in one’s home. Under
OCGA §16-11-126, Hertz has the right to possess a handgun inside his home,
motor vehicle, or place of business without a weapons carry license.
3
Bold for emphasis....

chainsaw
11-04-2013, 8:45 PM
I also like this part:
constitutional guarantees secure a right to carry firearms in public places, even if that right might be more limited than the right to keep firearms in the home

Why do I like it? Because many posters here (and on similar gun forums) run around claiming that rights are absolute, can not be infringed, are not up for negotiation. It's a nice antidote to see an actual court make it clear that rights are usually limited, some more than others.

LoneYote
11-04-2013, 11:15 PM
Why do I like it? Because many posters here (and on similar gun forums) run around claiming that rights are absolute, can not be infringed, are not up for negotiation. It's a nice antidote to see an actual court make it clear that rights are usually limited, some more than others.

While I agree that debate is healthy and negotiation is probably warranted in many aspects of our society, I would not classify this as a "nice" anything.

ziegenbock
11-05-2013, 5:02 AM
"Therefore, this provision is constitutional as applied to
him." Not really anything to see here.

hardlyworking
11-05-2013, 5:09 AM
It's a nice antidote to see an actual court make it clear that rights are usually limited, some more than others.
Yah, damn those "actual court"s who lately are protecting RKBA rights, just, willy-nilly!

So nice to see a change of pace!

fizux
11-05-2013, 6:43 AM
I also like this part:


Why do I like it? Because many posters here (and on similar gun forums) run around claiming that rights are absolute, can not be infringed, are not up for negotiation. It's a nice antidote to see an actual court make it clear that rights are usually limited, some more than others.
Okay, you've got your victory against the Second-Amendment-is-my-permit-to-carry-a-tacnuke crowd. How about some help with the Your-Constitutional-Rights-make-us-uncomfortable-so-banning-them-is-okay crowd?

Nick Justice
11-07-2013, 12:43 PM
So, he can still have a loaded gun in his home, car and place of business.

Cut and pasted from the opinion: "Under OCGA §16-11-126, Hertz has the right to possess a handgun inside his home, motor vehicle, or place of business without a weapons carry license.:

The federal felon-in-possession is mentioned in the opinion but not analyzed by the court. Apparently, he was never charged with violating the federal felon-in-possession ban, so the court could not address it, AND, his lawyer was wise enough not to bring it up!

The concurrence by Blackwell contains the good stuff, with Hines and Nahmias agreeing with it. The concurrence does not strike me as dicta, but rather as a statement of legal policy that must be followed by the lower courts. At least in Georgia.

And, At least Hertz did not lie on the CCW application!


One comment in the Volokh page was interesting: Lowering the bar to make all kinds of acts "felonies": In CA, selling horse meat can be a felony (Prop. 6, 1998).

Pmoore87
11-11-2013, 1:30 PM
Well, it's a step up from the rational basis reach-around we've been getting :shrug:

I haven't read enough yet to say, so perhaps there were other factors?

This made me laugh! :oji:

Pmoore87
11-11-2013, 1:36 PM
I also like this part:


Why do I like it? Because many posters here (and on similar gun forums) run around claiming that rights are absolute, can not be infringed, are not up for negotiation. It's a nice antidote to see an actual court make it clear that rights are usually limited, some more than others.

And this has been the story since the Constitution was ratified. Its always been the story that rights are not absolute, right from the start we had infringments. Things like anti chinese laws. (we need an anti free unregulated trade with China law, but that is a different subject entirely. ) Alien and Sedition acts, etc. These things have come and gone because the Constitution is a living document, its not absolute and that is what allows each generation to define differently. We just need the public to wake up and understand the real implications, not just what the boob tube tells em.