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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 05-02-2011, 7:29 AM
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Default NORDYKE OPINED MAY 2

http://www.ca9.uscourts.gov/datastor...2/07-15763.pdf
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Old 05-02-2011, 7:32 AM
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For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment to the County on the Nordykes’
First Amendment and equal protection claims. Because the
Nordykes may still be able to allege sufficient facts to state
a Second Amendment claim, we VACATE the district court’s
denial of leave to amend the complaint to the extent that the
denial was with prejudice, and REMAND for further proceedings.

Each party shall bear its own costs.

AFFIRMED in part, VACATED in part, and
REMANDED.
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Old 05-02-2011, 7:34 AM
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So what does this mean for those of us who aren't legal experts? Clif's notes version?
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Old 05-02-2011, 7:37 AM
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[4] Accordingly, we hold that only regulations which substantially burden the right to keep and to bear arms trigger
heightened scrutiny under the Second Amendment.

They've decided that blanket application of strict scrutiny is not appropriate. Only regulations substantially burdening RKBA will trigger heightened scrutiny.

"Sorting gun-control regulations based on their likely effectiveness is a task better fit for the legislature."
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Old 05-02-2011, 7:43 AM
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Nordyke round V here we go...

Nordyke lost again on all counts save one. It will have a chance once more, in district court, to litigate the 2A claim. Nordyke lives again! However, I don't think there is a chance of winning there. If they do win, I think it will be a miracle.
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Old 05-02-2011, 7:44 AM
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So what does all this mean??? Please give me the layman's definition.
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Old 05-02-2011, 7:46 AM
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Quote:
Originally Posted by Crom View Post
Nordyke round IV here we go...
Then V, VI, and ...
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Old 05-02-2011, 7:48 AM
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So what does all this mean??? Please give me the layman's definition.
IANAL, but it seems like they punted. Reading the opinion sounds like it is a politician speaking. Very long winded and didn't really answer the question. Then handed it off to someone else.

heightened? Seriously? Above what? none?

So a very tiny little bit of scrutiny means it is heightened.
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Old 05-02-2011, 7:55 AM
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Indeed, courts make similar determinations in other constitutional contexts. NORDYKE v. KING 5641See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (holding that pre-viability abortion regulations are unconstitutional if they impose an “undue burden” on a women’s right to terminate her pregnancy); Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984) (stating that content-neutral speech regulations are unconstitutional if they do not “leave open ample alternative channels for communication”). Courts can use the doctrines generated in these related contexts for guidance in determining whether a guncontrol regulation is impermissibly burdensome, as we suggest below.
Those examples give some idea of the type of analysis they suggest applying.

Regarding scrutiny, their answer is pretty clear: heighted scrutiny is triggered when a substantial burden is placed on the right to keep and bear arms for self defense. So only those regulations that substantially burden the right trigger heightened scrutiny. It is not a blanket application on anything that touches the fundamental right.
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Old 05-02-2011, 7:57 AM
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Basically it means that Don and the Nordykes get to start over at the district court level and we go 'round and 'round again.
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Old 05-02-2011, 7:58 AM
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This is politically driven anti 2A. How can you reason with the courts on the true meaning, when they use any excuse they can to avoid positive 2A rulings?

When we don't have an honest court system, it's time for a change, things can only go from bad to worse with corrupt courts.
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Old 05-02-2011, 7:58 AM
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Quote:
Originally Posted by CalBear View Post
Those examples give some idea of the type of analysis they suggest applying.

Regarding scrutiny, their answer is pretty clear: strict scrutiny is triggered when a substantial burden is placed on the right to keep and bear arms for self defense. So only those regulations that substantially burden the right trigger strict scrutiny. It is not a blanket application on anything that touches the fundamental right.
So what is considered substantial EXACTLY?

Dare I say... May Issue?
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Old 05-02-2011, 7:59 AM
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Is it plus or minus for gun owners, especially in CA
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Old 05-02-2011, 8:00 AM
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Following this lead, when deciding whether a restriction on gun sales substantially burdens Second Amendment rights, we should ask whether the restriction leaves law abiding citizens with reasonable alternative means for obtaining firearms sufficient for self-defense purposes
Quote:
Similarly, a law does not substantially burden a constitutional right simply because it makes the right more expensive
or more difficult to exercise.
Quote:
Finally, a regulation is particularly unlikely to impose a
substantial burden on a constitutional right where it simply
declines to use government funds or property to facilitate the
exercise of that right.
Quote:
It does not assert that the Ordinance makes it materially more difficult to obtain firearms. Nor does it allege a
shortage of places to purchase guns in or near Alameda
County. In any event, the Ordinance does not prohibit gun
shows, but merely declines to host them on government premises. The Proposed Second Amended Complaint, therefore,
does not allege sufficient facts to state a Second Amendment
claim capable of surviving a motion to dismiss.
Accordingly,
we conclude that the district court properly denied the Nordykes’ motion for leave to amend to that extent.
Insufficient proof that the ordinance substantially burdens the 2nd amendment.
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Old 05-02-2011, 8:00 AM
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Originally Posted by PatriotnMore View Post
This is politically driven anti 2A. How can you reason with the courts on the true meaning, when they use any excuse they can to avoid positive 2A rulings?

When we don't have an honest court system, it's time for a change, things can only go from bad to worse with corrupt courts.
you are wrong on both counts. The courts ruled that the Nordykes CAN make a 2A claim.
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Old 05-02-2011, 8:01 AM
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So now the district court decides if the gun show ban is a "substantial burden" or not? Why do I have a sinking feeling...

Did we win or lose? Paging Gene Hoffman....

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Old 05-02-2011, 8:02 AM
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Originally Posted by Pat Riot View Post
So what is considered substantial EXACTLY?

Dare I say... May Issue?
They did mention "other avenues" specifically in their ruling. It would seem, one could pretty easily argue, based on this ruling, that upon a UOC ban passing, there are no other avenues, and the right is substantially burdened. It's substantially burdened, already, IMO, because of school zone restrictions, and because of the unloaded requirement.
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Old 05-02-2011, 8:02 AM
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I found some disturbing reasoning in the opinion that makes me call it a loss for our side:

1. Gun shows increase gun crime

Quote:
Here, there is sufficient evidence to suggest that the Ordinance furthers the County’s interest in keeping those on its property safe from gun crime.
2. As long as somewhere somehow no matter how expensive or difficult, we can procure firearms and ammunition, we'll lose all other sources in CA and still not have our rights violated:

Quote:
Similarly, a law does not substantially burden a constitutional right simply because it makes the right more expensive
or more difficult to exercise
3. As long as there is a government interest, our rights can be denied as long as it doesn't appear to be "on purpose":

Quote:
Where, as here, an ordinance does not “purposefully
operate[ ] to the detriment of a suspect class, the only requirement of equal protection is that [the ordinance] be rationally
related to a legitimate governmental interest.”
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Old 05-02-2011, 8:02 AM
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Originally Posted by Pat Riot View Post
So what is considered substantial EXACTLY?

Dare I say... May Issue?
In the time I had to read it over, the only thing they did say was substantial was a complete ban on hand guns. Other then that I did not see any clear cut definition on what substantial was.
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Old 05-02-2011, 8:04 AM
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Quote:
But the Nordykes submitted the Proposed Second
Amended Complaint over six years ago. Since then, all of the
Supreme Court’s modern Second Amendment case law has
been created. See McDonald v. Chicago, 130 S. Ct. 3020
(2010); District of Columbia v. Heller, 554 U.S. 570 (2008);
cf. Nordyke IV, 563 F.3d at 459 (“Second Amendment law
remains in its infancy.”). 13 Accordingly, there may well be
facts which the Nordykes did not consider relevant in 2004,
and thus did not allege in the Proposed Second Amended
Complaint, but which, if now alleged, might plausibly suggest
that the Ordinance substantially burdens the Nordykes’ Second Amendment rights.

[8] Therefore, to the extent that the district court’s denial
of leave to amend was with prejudice, it must be vacated and
the Nordykes given the opportunity further to amend their
complaint. If they do, the district court should consider, in
light of Heller, McDonald, and this opinion, whether the Nordykes have alleged a viable Second Amendment claim.
In other words, since the Nordykes submitted this case prior to H & McD, there may be facts and claims that were not submitted, which may allow them to make a valid 2nd Amendment claim. That's why they've vacated denial of leave to amend.
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Old 05-02-2011, 8:05 AM
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Everyone lost from what I understand.
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Old 05-02-2011, 8:07 AM
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Quote:
Originally Posted by CalBear View Post
In other words, since the Nordykes submitted this case prior to H & McD, there may be facts and claims that were not submitted, which may allow them to make a valid 2nd Amendment claim. That's why they've vacated denial of leave to amend.
Just getting most of this digested. It does look like it is a mixed bag for us. The good is primarily in the 2A arena. There is no chance a district court will give this one to the Nordykes so, at the very least, we'll end up right back here at the 9th circuit; unless one side concedes.
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Old 05-02-2011, 8:08 AM
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Okay, so they have to prove that the ban on gun shows unduly burdens the 2A, but their equal protection arguments are quashed? Looks like a loss with a bit of punting to let the district court throw out the 2A claim, which they will? So we get another bite at the apple on appeal in the 9th?
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Old 05-02-2011, 8:08 AM
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So... what effect will this have on Pena v. Cid, and can that start to go forward now?
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Old 05-02-2011, 8:13 AM
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Quote:
Drawing from these cases, we have directed lower courts,
when deciding whether a restriction on gun sales substantially
burdens Second Amendment rights, to ask whether the restric-
tion leaves law-abiding citizens with reasonable alternative
means for obtaining firearms sufficient for self-defense purposes.

See supra Part III.A. By contrast, Judge Gould would
apparently apply rational basis review to every gun sales regulation,
even if it made guns nearly impossible to obtain.
This
is alarming since almost every gun-control regulation—even
those amounting to de facto gun bans—is rationally related to
the government’s legitimate interest in reducing gun crime.
See Heller, 554 U.S. at 629 n.27 (“[T]his law, like almost all
laws, would pass rational-basis scrutiny.”). The Supreme
Court was not exaggerating when it insisted that a Second
Amendment backed only by rational basis review would have
“no effect.” Heller, 554 U.S. at 629 n.27.
14
That's good at least. Gould was dissenting, and the majority disagreed with his opinion that most anything outside a wholesale ban should have rational basis.
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Old 05-02-2011, 8:13 AM
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This seems particularly important:

Quote:
Originally Posted by 9th circuit
We are satisfied that a substantial burden framework will prove to be far more judicially manageable than an approach that would reflexively apply strict scrutiny to all gun-control laws. As McDonald recognized, “assess[ing] the costs and benefits of firearms restrictions” requires “difficult empirical judgments in an area in which [judges] lack expertise.” 130 S. Ct. at 3050. Indeed, whether a gun-control regulation serves the government’s interest in safety is likely to be a difficult question to answer. See Heller, 554 U.S. at 702 (Breyer, J., dissenting) (“[E]mpirically based arguments . . . cannot prove either that handgun possession diminishes crime or that handgun bans are ineffective.”); Volokh, supra, at 1461 (arguing that it “is likely to be especially hard” to “estimate the effectiveness of [a gun-control] law in preventing future crime and injury”).
This says that looking at how much of a burden is imposed is a better standard than how much "good" the state will get out of the law. While it may seem somewhat negative in this case it means that things like "shall issue" will be much harder to justify based on "blood in the streets" and can, instead be argued on how much of an infringement it is to completely disarm someone for the 16 hours a day they are out of their home.

Here we need to address the issue by looking at the amount of trade done at "gun shows" and show that it is a large percentage of the overall trade to show it would negatively impact the acquisition of guns, ammunition, training etc.
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Old 05-02-2011, 8:18 AM
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Quote:
Originally Posted by Luieburger View Post
So... what effect will this have on Pena v. Cid, and can that start to go forward now?
I think Peña is a lose for us given the courts opinion unless Peña can prove he cannot exercise his right at all under the restrictions of the Roster. Increased expense and difficulty are not valid according to the court.

Quote:
Similarly, a law does not substantially burden a constitutional right simply because it makes the right more expensive
or more difficult to exercise
I also read this as meaning the court will support ammunition bans and increased regulation and restriction.
I don't really want to go to Negative Town, but I think we'll have to kick everything back up to SCOTUS and hoep they grow a spine this time and make it clear that 2A must be fully incorporated to the every single state and call for a national uniform firearms regulation regime.
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Old 05-02-2011, 8:19 AM
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hmmm.
Quote:
Originally Posted by 9th circuit
Applying strict scrutiny to every gun regulation would require courts to assess the effectiveness of a myriad of guncontrol laws. Whenever a law is challenged under the Second Amendment, the government is likely to claim that the law serves its interest in reducing crime. See, e.g., Defs.’ Br. at 19 (asserting that the Ordinance serves the County’s interest in “minimiz[ing] the risk of shootings”). Because the Supreme Court has already held that “the Government’s general interest in preventing crime” is “compelling,” United States v. Salerno, 481 U.S. 739, 754 (1987), the question, under strict scrutiny, would be whether the regulation is narrowly tailored to that interest. But courts cannot determine whether a guncontrol regulation is narrowly tailored to the prevention of crime without deciding whether the regulation is likely to be effective (or, at least, whether less burdensome regulations would be as effective). Sorting gun-control regulations based on their likely effectiveness is a task better fit for the legislature. Cf. Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 Harv. L. Rev. 1274, 1291 (2006) (“A test may be deemed judicially unmanageable if it would require courts to make empirical findings or predictive judgments for which they lack competence.”).
That is disgusting. This is suggesting that no law based on "reducing crime" can be subject to strict scrutiny. One cannot shirk their responsibility to defend the constitution and civil right simply because the legislature has so filled the law books with detritus that sorting out the 3 good laws becomes difficult. I have a better idea, lets assume all laws limiting access to guns for the law abiding are facially deemed unconstitutional and then let the legislature justify any NEW law that replaces the old.
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Old 05-02-2011, 8:25 AM
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Quote:
Originally Posted by dantodd View Post
hmmm.

That is disgusting. This is suggesting that no law based on "reducing crime" can be subject to strict scrutiny.
The court said it's really hard to determine the effectiveness of any gun control law, so it's more appropriate to leave some of that to the legislature, but heighten scrutiny still applies if the restriction substantially burdens the right to self defense. They echoed what the supreme court said about a rational basis 2A having no "teeth" at all, and being subjugated to the closet.

I repeat: heightened scrutiny DOES apply if the right is substantially burdened. "Accordingly, we hold that only regulations which substantially burden the right to keep and to bear arms trigger heightened scrutiny under the Second Amendment." I think this ruling is not great for us, but will help us in the carry department. Our right to bear arms is substantially burdened in this state, and will be EXTREMELY burdened if a UOC ban goes through.
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Old 05-02-2011, 8:26 AM
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Quote:
Originally Posted by dantodd View Post
hmmm.

That is disgusting. This is suggesting that no law based on "reducing crime" can be subject to strict scrutiny.
Yep. I found their justification for that is be equally disgusting.

Quote:
Where, as here, an ordinance does not “purposefully
operate[ ] to the detriment of a suspect class, the only requirement of equal protection is that [the ordinance] be rationally
related to a legitimate governmental interest.”
In other words, trump up a government "interest" and you can restrict rights all you want. Any study linking availability of firearms or ammunition to crime can be cast as an "interest" so firearms rights can be further and further restricted.

It's back up to SCOTUS for us, do not pass Go, don not collect your right to bear arms in California.
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Old 05-02-2011, 8:27 AM
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This thing is such a jumble. I'll have to digest a lot more of it before commenting further and I don't really have time this AM.

I will say that a trip UP would probably have been preferable to this trip back DOWN at this juncture.
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Old 05-02-2011, 8:30 AM
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Quote:
Originally Posted by advocatusdiaboli View Post
In other words, trump up a government "interest" and you can restrict rights all you want. Any study linking availability of firearms or ammunition to crime can be cast as an "interest" so firearms rights can be further and further restricted.
Not entirely. They still very strongly insisted that unreasonable restrictions on the right will trigger heightened scrutiny. Yes, a lot of gun control laws aren't likely to be struck down at this point, but some may be vulnerable.
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Old 05-02-2011, 8:32 AM
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Where's the "2 More YEARS" sign?
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  #34  
Old 05-02-2011, 8:35 AM
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9We need not decide today precisely what type of heightened scrutiny
applies to laws that substantially burden Second Amendment rights.
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Old 05-02-2011, 8:38 AM
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Those examples give some idea of the type of analysis they suggest applying.

Regarding scrutiny, their answer is pretty clear: strict scrutiny is triggered when a substantial burden is placed on the right to keep and bear arms for self defense. So only those regulations that substantially burden the right trigger strict scrutiny. It is not a blanket application on anything that touches the fundamental right.
alomst seems more like what they're saying is that a pvt. person needs to challenge the ordinance on a purely 2A claim because banning guns on county property would directly impact the core right of bearing arms for self defense.

Cuz the way I read that decision was "the county can ban guns on it's property for reasons of safety.....unless someone can show that such a law unduly burdenes the core 2A right"....which a total ban on otherwise lawfully bearing arms would do.
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Old 05-02-2011, 8:40 AM
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I just threw up in my mouth a little.
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  #37  
Old 05-02-2011, 8:40 AM
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This is very disappointing, here goes another year or two of litigation.
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Old 05-02-2011, 8:40 AM
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alomst seems more like what they're saying is that a pvt. person needs to challenge the ordinance on a purely 2A claim because banning guns on county property would directly impact the core right of bearing arms for self defense.

Cuz the way I read that decision was "the county can ban guns on it's property for reasons of safety.....unless someone can show that such a law unduly burdenes the core 2A right"....which a total ban on otherwise lawfully bearing arms would do.
Problem is that the county doesn't ban guns on their property. CCW holders can walk around all day long carrying on the fairgrounds. It's only at gun shows where such would be illegal. But since you can't have gun shows on the grounds anyway.....
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Old 05-02-2011, 8:42 AM
Untamed1972 Untamed1972 is offline
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Problem is that the county doesn't ban guns on their property. CCW holders can walk around all day long carrying on the fairgrounds. It's only at gun shows where such would be illegal. But since you can't have gun shows on the grounds anyway.....

does the county ordinance provide an exeption for CCW holders? But also if CCWs are not freely accessible to all law-abiding, non-prohibited persons then an undue burden could still likely be shown. I think all of these cases is really getting down to the OTHER core of that right that SCOTUS needs to affirm which is that BEARING ARMS IN PUBLIC is potected fundamental right as well.

Once that issue is settled then the boundaries for consideration of all this stuff becomes much more clear.
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Old 05-02-2011, 8:44 AM
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Quote:
Originally Posted by Untamed1972 View Post
alomst seems more like what they're saying is that a pvt. person needs to challenge the ordinance on a purely 2A claim because banning guns on county property would directly impact the core right of bearing arms for self defense.

Cuz the way I read that decision was "the county can ban guns on it's property for reasons of safety.....unless someone can show that such a law unduly burdenes the core 2A right"....which a total ban on otherwise lawfully bearing arms would do.
The courts would have to decide whether their right to defense is substantially burdened. I should note that they actually only said heightened scrutiny. They didn't mention which, exactly. CCW holders can carry on the property, so I doubt there's much of a self defense argument there. I think arguments will have to revolve more around other cases contesting the restrictions on carry imposed by the state.
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