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Old 02-01-2011, 6:01 PM
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Window_Seat Window_Seat is offline
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Very good explanation from Gray.

And so would I be correct in saying that strict scrutiny must be given when a core fundamental right is severely burdened?

When I was listening to Nordyke III, I listen (at 25:51 into the recording) to one of the Judges asking the opposing counsel why Strict Scrutiny shouldn't be given in this case, and she argued:

Quote:
Judge: "McDonald tells us not only is the Heller right preserved it applies to the states, but it really emphasized the fact that the Second Amendment is a substantial, fundamental right, suggesting as we've seen in some of these other post McDonald cases, strict scrutiny perhaps ought to be applied, why shouldn't we apply strict scrutiny to this ordinance?"

Opposing Counsel:
"The fundamental rights cases do not pronounce a rule that we use strict scrutiny in the context of all fundamental rights, even when strict scrutiny is used, there are lots of variations on the forms..."


Judge:
"Sure, there has to be a showing on some burden on the right, isn't that correct?"


Opposing Counsel:
"There has to be a showing of a direct burden on the right, and as I tried to point out, here, we have at most an indirect burden on the right to purchase a gun, it makes it less convenient... We... We.. We only... wah... We have a situation in which strict scrutiny is not compatible with the court pointing out that there are several presumptively valid categories of regulation that survives Second Amendment."

I'm not sure how she could prevent the court from applying SS with that kind of argument. It seems like she is helping our side with that argument by saying that we have at most, an indirect burden on the right to purchase. Isn't it a direct burden when we are forced to look at a photo of a firearm we want to purchase because the real thing is banned, and we can't actually pick up the item and safely handle it to feel the weight, the general handling of it, among other things, there's a direct burden, and therefore SS ought to be applied? It seems like a no-brainer to me, but IANAL either...

And then she uses that term "presumptively" at the end of her answer when talking about the regulations that she believes survives the 2A.

I don't see how the court can do anything other than apply SS to the ordinance.

Erik.
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