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Old 12-12-2014, 3:02 PM
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Quote:
Originally Posted by Crom View Post
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:

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:
So as I indicated and you confirmed they looked at step 1 of the proposed approach/analysis and didnt get past step 1 because there wasnt any laws burdening the right to carry in 1791 (2a ratification year) or 1868 (14th amendment ratification date). They didnt get to prior restraint (step 2) at all or means end scrutiny analysis (step 3) because it failed constituional muster at step 1 under analysis of the history and tradition as reflected in Heller and McDonald

Therefore, this approach remains the strongest for confirmation and upholding of the 2a right.
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