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Old 05-13-2019, 6:41 PM
sarabellum sarabellum is offline
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Originally Posted by Kukuforguns View Post
I think you should re-read Justice Thomas's dissent:

Next, read Justice Kavanaugh's dissent in Heller II:

As the two passages I quoted (and more passages in the full dissents) indicate, the justices are proposing/shaping a new test for determining the constitutionality of laws regulating firearms that does not utilize the rational basis/intermediate/strict scrutiny analysis. If a regulation is not consistent with the text, history, and traditions of the Second Amendment, then the regulation fails.
Generally, the courts have adopted a two-step framework for evaluating Second Amendment challenges. First, courts ask whether the regulated person, firearm, or place comes within the scope of the Second Amendment’s protections. If not, the law does not implicate the Second Amendment. But if so, the court next employs the appropriate level of judicial scrutiny—rational basis, intermediate, or strict scrutiny—to assess whether the law passes constitutional muster. In deciding what level of scrutiny is warranted, courts generally ask whether the challenged law burdens core Second Amendment conduct, like the ability to use a firearm for self-defense in the home. If a law substantially burdens core Second Amendment activity, courts typically will apply strict scrutiny. Otherwise, courts generally will apply intermediate scrutiny. Most challenged laws have been reviewed for intermediate scrutiny, where a court asks whether a law is substantially related to an important governmental interest. And typically, the viability of a firearm restriction will depend on what evidence the government puts forth to justify the law. Yet sometimes courts take a different or modified approach from that described above and ask whether a challenged regulation falls within a category deemed “presumptively lawful” by Heller. If the law falls within such a category, a court does not need to apply a particular level of scrutiny in reviewing the restriction because the law does not facially violate the Second Amendment.
Congressional Research Office, "Post-Heller Second Amendment Jurisprudence," (2019), pp. 2.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. [I]For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.
District of Columbia v. Heller, 554 U.S. 570 (2008)

State regulation of arms ownership is presumptively valid, based on the history of the regulations:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on 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.

Be careful what you wish for. People repeat the slogan's "originalist" and "historical" without delving more deeply into the implications. Namely, those originalist and historical implications are that a) large populations in the U.S. up to the 20th Century were not "originally" understood to be worthy of arms ownership and 2nd Amendment applying to them, and b) because a form of regulation is historically ancient it must be valid. When these latter analyses are employed by the Court, no scrutiny will be applied and the regulation will be upheld. Such analyses are inconsistent with our contemporary construction of the 2nd Amendment implicating a broad right to armament extended to the largest number of people, for the broadest purposes.

Last edited by sarabellum; 05-14-2019 at 12:14 PM..
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