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Old 05-11-2019, 10:10 PM
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Originally Posted by TruOil View Post
Because of his dissent from the denial of cert in Peruta, I think it was. A very forceful argument that the Second (despite its name) is not a second class right, and is entitled to the same stringent review as limitations on any other fundamental right.
I think you should re-read Justice Thomas's dissent:
In a thorough opinion, a panel of the Ninth Circuit reversed. 742 F. 3d 1144. The panel examined the constitutional text and this Court’s precedents, as well as historical sources from before the founding era through the end of the 19th century. Id., at 1150–1166. Based on these sources, the court concluded that “the carrying of an operable handgun outside the home for the lawful purpose of self-defense . . . constitutes ‘bear[ing] Arms’ within the meaning of the Second Amendment.” Id., at 1166. It thus reversed the District Court and held that the sheriff ’s interpretation of “good cause” in combination with the other aspects of the State’s regime violated the Second Amendment’s command that a State “permit some form of carry for self-defense outside the home
Next, read Justice Kavanaugh's dissent in Heller II:
Put in simple terms, the issue with respect to what test to apply to gun bans and regulations is this: Are gun bans and regulations to be analyzed based on the Second Amendment’s text, history, and tradition (as well as by appropriate analogues thereto when dealing with modern weapons and new circumstances, see infra Part I.B)? Or may judges recalibrate the scope of the Second Amendment right based on judicial assessment of whether the law advances a sufficiently compelling or important government interest to override the individual right? And if the latter, is the proper test strict scrutiny or intermediate scrutiny?
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.

I think you can expect a Christmas present when the NYSRPA opinion is published, but don't expect the Christmas present to look like strict scrutiny.
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