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Old 12-11-2014, 11:45 PM
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Gunlawyer Gunlawyer is offline
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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:

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.
"No free man shall ever be debarred the use of arms…" Thomas Jefferson, Proposed Virginia Constitution, 1776, Jefferson Papers 344.

Any posts by me are intended to be for informational purposes only and are not legal advice. No attorney/client relationship is formed.

Last edited by Gunlawyer; 12-11-2014 at 11:50 PM..
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