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Old 12-12-2014, 1:42 PM
Crom Crom is offline
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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:

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:

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.

Last edited by Crom; 12-12-2014 at 1:45 PM..
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