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Old 10-16-2017, 2:50 PM
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Quote:
Originally Posted by sarabellum View Post
Second, on 09/09/13, the District Court order dismissed the case under FRCP 12(b)(6) failure to state a claim, i.e. the pleadings are defective such that the case may resolved without reaching the merits. We have ad nauseum pointed out that the Supreme Court in Heller carved out exceptions to the 2nd Amendment that consume the entire right to bear arms. The District Court precisely and easily cited Heller for the proposition that the states may regulate the possession and sale of firearms:
The first step of the analysis is dispositive in this case: under the Supreme Court‟s decisions in Heller and McDonald, the Ordinance is presumptively lawful. Critically, as previously noted, the Supreme Court has cautioned that nothing in the Heller opinion “should be taken to cast doubt on . . . laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Heller, 554 U.S. at 626-27. The Supreme Court explained that its list of “presumptively lawful regulatory measures” was “not [] exhaustive.” Id. at 627 n.26.
09/09/13 Order granting D motion to dismiss, pp. 9: 14-22

The Heller decision makes clear that state laws controlling the sale of firearms are presumptively valid. Id. The language from the 09/09/13 citing to Heller is dispositive and predicatable.
Yes, I agree that this is the crux of the matter. Judge Bea in his dissent attempts to address this:

Quote:
Originally Posted by Texeira v County of Alameda en banc decision, pp. 59-60
In my view, the County cannot avail itself of the italicized limitations for “longstanding . . . laws imposing conditions and qualifications on the commercial sale of arms,” because it has failed to carry its burden of establishing that the Ordinance is “longstanding” or is in a class of longstanding prohibitions as to the location of firearms sales and services in particular. Indeed, the County has offered no evidence demonstrating that the Ordinance is the kind of regulation which Americans would have seen as permissible at the time of the adoption of the Second Amendment. See Teixeira, 822 F.3d at 1058. Though the majority has unearthed its own historical narrative to that effect, see Majority Op. 28–34, none of those materials were presented by the County to the district court or in the County’s brief on appeal.

There can be no doubt that evidence the regulations are “longstanding” is required to claim Heller’s carve-out for “presumptively lawful” “conditions and qualifications on the commercial sale of arms.” In the above-quoted passage from Heller, the object of the preposition “on” in the phrase “cast doubt on” is a disjunctive parallel construction: “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Thus, under the series-qualifier canon, the adjective “longstanding” applies to each phrase within the parallelism—including “laws imposing conditions and qualifications on the commercial sale of arms.” See Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 147–151 (West 2012).
So that raises the question: is Bea correct in terms of how to properly read the "presumptively lawful" passage in Heller? The entire case turns on this.

Indeed, the panel opinion also seems to interpret the passage the same way, since it says:

Quote:
Originally Posted by Teixeira v County of Alameda, 822 F. 3d 1047 (2016) at 1057
The proper question, therefore, is whether Alameda County's ordinance is the type of longstanding "condition[]" or "qualification[] on the commercial sale of arms," Heller, 554 U.S. at 626-27, 128 S.Ct. 2783, whose interference with the right to keep and to bear arms historically would have been tolerated.
(emphasis mine)


Quote:
The level of scrutiny is a problem since the Heller decision's "presumptively" valid language is lower than rational basis shifting the burden entirely to the plaintiff.
This is true under the assumption that the law in question meets the "presumptively lawful" qualification. But does it, if the law must also be "longstanding"?


Quote:
Heller is the problem with its expansive exception concluding all regulation of arms by the states to be presumptively valid.
If indeed "presumptively lawful" is independent of "longstanding", then you are absolutely correct here. But if all regulation of arms by the states are presumptively valid, then how is it that total bans are excluded from that?
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Last edited by kcbrown; 10-16-2017 at 3:36 PM..
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