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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #1  
Old 12-11-2014, 11:45 PM
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Default Was Peruta decided like this in your opinion?

I read many and various legal arguments years ago about the 2nd amendment and came to my own conclusion how the 2A cases should be decided. I emailed various legal scholars and prominent attorneys who have argued before SCOTUS and appellate courts in 2A matters throughout the country my thoughts and recommendations back in 2011 and 2012 my theories. I then outlined these theories in layperson terms here back in 2012 and 2013 (see my past posts and this example post below re: NJ case)and said this:

http://www.calguns.net/calgunforum/s...=801138&page=2

This is the first case IMHO whereby it was argued (although lost at the appellate level) substantially similar to how I suspect SCOTUS will ultimately rule on how to analyze the 2a. Therefore, I think this is an excellent case for SCOTUS to grant cert. The arguments although not analyzed by the appellate court and simply disregarded without any logic are throughout the opinion. The outcome is not how I think SCOTUS would decide this case and it wouldnt get past step 1.

IMHO SCOTUS should ultimately find that the 2a should be evaluated as follows(this is supported in Heller and McDonald).

Step 1. Look at history and tradition of the enacted law/regulation to see if there was a ban/restriction similar when the 2a was ratified (Simiar to how a right to trial by jury in the 6a is looked at and analyzed by the court. I.e. Is this a cause of action/suit at law or at equity. So they analyze did this restriction exist at ratification of 2a prominently). If so then move to step 2. If not then unconstitutional because there is not a history and tradition of the ban/restriction.

Because 2a is a fundamental right State bears burden of proof at all steps.

Step 2: Is this ban/restriction a prior restraint of the 2a such that it obliterates the core right of self defense. Import 1a cases and analysis. If so unconstitutional. If not then move to step 3.

Step 3: Apply means end scrutiny to right. If ban/restriction goes to core right of self defense then strict scrutiny. If not then intermediate scrutiny. Both have State with burden of proof.

Just my to cents but IMHO this would give us a strong 2a and be in line with Heller, McDonald, and the US Constitution.


Peruta looked at step 1 and went no further and ruled in our favor.

Do you think Peruta was decided with this framework in mind? Opinions. Comments. Your two cents.

I thought this discussion appropriate to 2a legal. If this is the wrong forum I'm sure the reasonable mods will move appropriately.
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Last edited by Gunlawyer; 12-11-2014 at 11:50 PM..
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Old 12-12-2014, 9:16 AM
Untamed1972 Untamed1972 is offline
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Peruta was basically a copy and paste of the historical analysis done in Heller.
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Old 12-12-2014, 1:42 PM
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OP, I don't understand what you're asking... But if it helps you here is my take on Peruta.

The Peruta court is correct because it took direction from Heller and McDonald and adopted the exact same 2-step inquiry to resolve the Second Amendment claim. In plain English, the court said that carry is protected activity, and the sheriff's polices infringed by obliterating the right.

Their analysis followed the same procedure in Heller. They answered the first step by looking at both "text and history" as instructed by Heller. The Peruta court used (40) pages of citations and historical text to arrive at their conclusion. And for good reason, the court said:

Quote:
one might consider it odd that we have gone to such lengths to trace the historical scope of the Second Amendment right. But we have good reason to do so: we must fully understand the historical scope of the right before we can determine whether and to what extent the San Diego County policy burdens the right or whether it goes even further and "amounts to a destruction of the right" altogether. Heller instructs that text and history are our primary guides in that inquiry.
Before taking part in part-2 of the inquiry, they asked themselves how to go about doing it. They looked at, and described their sister courts wrestling with the means-end scrutiny nightmare problems, and the approach taken in Heller. They decided to follow Heller and that the Sheriff's policies in effect destroyed the right, so no need to establish a standard of review.

The court used about 16 pages to do that part.

Now what comes next is very interesting. The Peruta court looked at every other circuit court opinion and explained in detail why many of them were wrong, notable were, Second, Third and Fourth circuits. They were wrong because contrary to the approach in Heller, all three courts declined to undertake a complete historical analysis of the scope and nature of the Second Amendment right outside the home.


Lastly, Peruta does say something about Heller that I think is worth quoting here:

Quote:
One of Heller's most important lessons is that the Second Amendment "codif[ies] a pre-existing right" whose contours can be understood principally through an evaluation of contemporaneous accounts by courts, legislators, legal commentators, and the like. Heller; see also McDonald ("The traditional restrictions [on the keeping and bearing of arms] go to show the scope of the right."). Tracing the scope of the right is a necessary first step in the constitutionality analysis-and sometimes it is the dispositive one. See Heller "[C]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them...." Id. at 634-35, 128 S.Ct. 2783.
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Last edited by Crom; 12-12-2014 at 1:45 PM..
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Old 12-12-2014, 3:02 PM
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Quote:
Originally Posted by Crom View Post
OP, I don't understand what you're asking... But if it helps you here is my take on Peruta.

The Peruta court is correct because it took direction from Heller and McDonald and adopted the exact same 2-step inquiry to resolve the Second Amendment claim. In plain English, the court said that carry is protected activity, and the sheriff's polices infringed by obliterating the right.

Their analysis followed the same procedure in Heller. They answered the first step by looking at both "text and history" as instructed by Heller. The Peruta court used (40) pages of citations and historical text to arrive at their conclusion. And for good reason, the court said:

Before taking part in part-2 of the inquiry, they asked themselves how to go about doing it. They looked at, and described their sister courts wrestling with the means-end scrutiny nightmare problems, and the approach taken in Heller. They decided to follow Heller and that the Sheriff's policies in effect destroyed the right, so no need to establish a standard of review.

The court used about 16 pages to do that part.

Now what comes next is very interesting. The Peruta court looked at every other circuit court opinion and explained in detail why many of them were wrong, notable were, Second, Third and Fourth circuits. They were wrong because contrary to the approach in Heller, all three courts declined to undertake a complete historical analysis of the scope and nature of the Second Amendment right outside the home.


Lastly, Peruta does say something about Heller that I think is worth quoting here:
So as I indicated and you confirmed they looked at step 1 of the proposed approach/analysis and didnt get past step 1 because there wasnt any laws burdening the right to carry in 1791 (2a ratification year) or 1868 (14th amendment ratification date). They didnt get to prior restraint (step 2) at all or means end scrutiny analysis (step 3) because it failed constituional muster at step 1 under analysis of the history and tradition as reflected in Heller and McDonald

Therefore, this approach remains the strongest for confirmation and upholding of the 2a right.
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Old 12-12-2014, 3:40 PM
Crom Crom is offline
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Peruta used the 2-step approach, in step 2, though they realized, they need not use the means end scrutiny, because the law went too far under any form of review it did not pass constitutional muster. I think you may be operating with your own vernacular which I don't share and which is why your post was confusing to me. I would refrain from introducing your own vocabulary (i.e. your self numbered steps) when discussing 2A two-step analysis. Rather use what the courts are stating (steps and prongs).

Here is the two step process as it's illustrated in Jackson v. City and County of San Francisco, 746 F. 3d 953 - Court of Appeals, 9th Circuit 2014. Might as well look at Chovan, as it lists the two-step inquiry.

First step, we ask "whether the challenged law burdens conduct protected by the Second Amendment," Chovan, 735 F.3d at 1136,
(If the answer to step 1 is yes, then go to step 2)

Second step asks: If a prohibition falls within the historical scope of the Second Amendment, we must then proceed to the second step of the Second Amendment inquiry to determine the appropriate level of scrutiny.

When ascertaining the appropriate level of scrutiny, "just as in the First Amendment context," we consider:
In analyzing the first prong of the second step, the extent to which the law burdens the core of the Second Amendment right, we rely on Heller's holding that the Second Amendment has "the core lawful purpose of self-defense," 554 U.S. at 630, 128 S.Ct. 2783, and that "whatever else it leaves to future evaluation, [the Second Amendment] surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Id. at 635, 128 S.Ct. 2783; see also Chovan, 735 F.3d at 1138 (stating that a core right under the Second Amendment is "the right of law-abiding, responsible citizens to use arms in defense of hearth and home").

In analyzing the second prong of the second step, the extent to which a challenged prohibition burdens the Second Amendment right, we are likewise guided by First Amendment principles. Cf. Ezell, 651 F.3d at 706-07. As we explained in Chovan, laws which regulate only the "manner in which persons may exercise their Second Amendment rights" are less burdensome than those which bar firearm possession completely. 735 F.3d at 1138;
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Last edited by Crom; 12-12-2014 at 3:43 PM..
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Old 12-15-2014, 1:44 AM
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OP, if I understand you correctly, you've put together a framework for how you think SCOTUS should decide 2A cases. You've pitched this idea to everyone who will hear it, including Calguns 2x. And now you've started this thread for an attaboy because you think the PERUTA ruling follows your framework? Is that the gist of this thread?
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Old 12-16-2014, 9:16 PM
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Originally Posted by Sleighter View Post
OP, if I understand you correctly, you've put together a framework for how you think SCOTUS should decide 2A cases. You've pitched this idea to everyone who will hear it, including Calguns 2x. And now you've started this thread for an attaboy because you think the PERUTA ruling follows your framework? Is that the gist of this thread?
I was looking for opinions whether people agree that Peruta was decided this way based on their reading of the opinion thus validating my legal opinion on how the 2a cases should be decided. I am not seeking any attaboys and just want the strongest possible framework for 2a cases and hence put the discussion on the table before and now after Peruta. Beforehand it was difficult perhaps for the layman to understand the framework which had been proposed but now with all the discussions and all perhaps easier to see.
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Old 12-17-2014, 10:12 AM
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Quote:
Originally Posted by Untamed1972 View Post
Peruta was basically a copy and paste of the historical analysis done in Heller.

Only up until page 60. After that, it went off the rails.


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