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Old 11-26-2012, 3:20 PM
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Judges O'Scannlain and Callahan have said before that the Court needs to adopt a standard of review on the Second Amendment:

Quote:
"But I cannot agree with the majority’s approach, which fails to explain the standard of scrutiny under which it evaluates the ordinance.² Rather than leave the level of scrutiny in doubt, I would expressly adopt the measured, calibrated approach developed in the original three-judge panel majority opinion, which considers carefully the extent of the regulation’s burden on Second Amendment rights. See Nordyke, 644 F.3d at 782-88 (explaining that the level of scrutiny applied to gun control regulations depends on the regulation’s burden on the Second Amendment right to keep and to bear arms); cf. Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) (developing framework for reviewing gun control regulations with reference to the extent of the regulation’s burden on Second Amendment rights); Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) (same); United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011) (same); United States v. Chester, 628 F.3d 673 (4th Cir. 2010) (same); United States v. Reese, 627 F.3d 792 (10th Cir. 2010) (same); United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010) (same)."

All that is clear from the majority’s approach is that the majority cannot be evaluating the ordinance under strict scrutiny. Strict scrutiny requires the government to show that it has taken the least restrictive means to serve a compelling government interest. It is an exceptionally difficult standard to satisfy. See Bernal v. Fainter, 467 U.S. 214, 219 & n.6 (1984). Here, the parties have not even had an opportunity to build a factual record regarding the County’s new interpretation of its ordinance, so it is impossible to say at this stage that the County could establish that its ordinance would satisfy a least-restrictive-means analysis."

O’SCANNLAIN, Circuit Judge, joined by TALLMAN,
CALLAHAN, and IKUTA, Circuit Judges, concurring in the
judgment.
Quote:
"Rather than applying a constitutional standard of review to Plaintiffs’ Second Amendment challenge, see maj. op. at 6168, the majority applies the ever popular “rule of thumb” standard, concluding that an amendment of Plaintiffs’ complaint is futile because the majority has the strong impression that County’s newly interpreted ordinance is not sufficiently burdensome to violate the Second Amendment."

—IKUTA, Circuit Judge, with whom CALLAHAN, Circuit
Judge, joins, concurring in the judgment
Also, for those doubting that this court will continue to be par for the course in their standards, see this video that I watched in its entirety:



My hope for this case is that the Judges don't rush through it because of the Court's case load.

Erik.
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