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National 2nd Amend. Political & Legal Discussion Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel.

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  #121  
Old 02-05-2016, 7:16 AM
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So the case is remanded to the district court to apply strict scrutiny.

I don't see any way the AWB and LCM bans are upheld under strict scrutiny.
I do. But the stench from the "reasoning" that would be employed would be unbearable:

  • "Public safety" is a compelling government interest.
  • "Assault weapons" and "large" capacity magazines are "dangerous" and thus implicate "public safety" merely by being possessed by the citizenry.
  • The law is narrowly tailored because it only bans those weapons, and not all.
  • The law is the "least restrictive means" of keeping those weapons out of the hands of the citizenry.

And just like that, the law passes "strict" scrutiny.


Why people think "strict scrutiny" is some sort of magic formula for upholding rights is beyond me ...
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  #122  
Old 02-05-2016, 7:33 AM
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Nothing is over until we decide it is! Was it over when the Germans bombed Pearl Harbor? Hell no!
Of course not. It was over when we dropped two atomic bombs on Germany.
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  #123  
Old 02-05-2016, 7:38 AM
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Why people think "strict scrutiny" is some sort of magic formula for upholding rights is beyond me ...
Strict scrutiny has quite an established framework to the point that even our CA AG famously (or infamously) said that most gun control laws would fail strict scrutiny.

It's enough to compare statistics on long guns vs. handguns to sink any AWB.
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  #124  
Old 02-05-2016, 7:51 AM
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Strict scrutiny has quite an established framework to the point that even our CA AG famously (or infamously) said that most gun control laws would fail strict scrutiny.

It's enough to compare statistics on long guns vs. handguns to sink any AWB.
Oh, I quite agree that a correct application of strict scrutiny should cause such bans to be struck.

But just as we've already seen with intermediate scrutiny, courts are perfectly capable of misapplying their own standards when it suits them. Why should we expect any different here?

No, I think what helps us here is more that the district court will know that the very same panel that issued this decision would be the one that would be taking the inevitable appeal, so it may as well issue a decision that said panel would approve. Assuming this doesn't get overturned en banc, of course, which is a very real possibility.
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  #125  
Old 02-05-2016, 8:56 AM
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Originally Posted by pacrat View Post
"differently situated"

aka.............Special Class of citizens protected by powerfull Unions. Who make large campaign donations to assure their rights are not violated by the politicians they pay off. Now the Special Class status, is affirmed by Judges that are appointed by the politicians their Unions pay off.

Equal Protection, now means, some can be made MORE EQUAL with the proper political clout.

JM2c
I'm just trying to reconcile the general concept that the USCON, besides delegating powers, is a wholesale restriction on the state and feds and yet here we have exemptions carved out in favor of the sate/fed which seems to run counter to the entire concept of keeping .gov in check.
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  #126  
Old 02-05-2016, 10:11 AM
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Since this case was initially decided via judicial fiat versus a trial, and the CA4's decision makes clear that there are still unanswered questions concerning both sides evidence, I doubt that either the en banc request or the SC appeal will do anything other than delay the actual trial. I, for one, am looking forward to how the gov't will try to twist their emotional plea into a logical argument that will meet the strict scrutiny standard...should be enjoyable reading.
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  #127  
Old 02-05-2016, 10:29 AM
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I think the military has them beat.
In the US smart *** ...
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  #128  
Old 02-05-2016, 10:31 AM
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In the US smart *** ...

Sorry, I couldn't resist.


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  #129  
Old 02-05-2016, 11:02 AM
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I'd be willing to beat that leo's kill more people with "assault rifles" than any other group of people.
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In the US smart *** ...
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Sorry, I couldn't resist.
I thought the joke was about "beat" vs. "bet"...
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  #130  
Old 02-05-2016, 11:51 AM
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Originally Posted by Elgatodeacero View Post
If strict scrutiny is applied properly, then this case is over.......
.......

Will we see an en banc rehearing request in the 4th Circuit on this case?

The fact that this opinion specifically addresses the contrary circuit decisions in detail shows this court is taking the 2nd Amend seriously.
Keep in mind that if it goes en banc, the panel would have to overturn Chester, too. Due to that fact, I doubt that it will be granted. In addition, as yet. no law has been overturned (yet ). Only the method of analysis has changed. We are still looking at years before this gets settled IMO, but great, none the less.

I hope a 28j letter flies out the door to the 9th Circuit en banc panel that's considering Peruta !
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  #131  
Old 02-05-2016, 12:00 PM
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I thought the joke was about "beat" vs. "bet"...
completely overlooked that till now...
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  #132  
Old 02-05-2016, 12:10 PM
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I hope a 28j letter flies out the door to the 9th Circuit en banc panel that's considering Peruta !
If only it mattered. Thomas was trying to align CA-9 with carry cases in CA-2/3/4 and away from CA-7. Strict scrutiny on "arms" case is unlikely to register on his radar as anything but "meh."
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  #133  
Old 02-05-2016, 12:10 PM
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Originally Posted by selfshrevident View Post
So help me understand...

The 4th circuit said the law IS constitutional, but won't stand under strict scrutiny?

dafuq?
Not quite; the 4th panel said the lower court screwed up, and now must re-hear the case with different rules for its analysis.

The reasoning for the remand to the lower court is what is getting approval here.
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  #134  
Old 02-05-2016, 12:11 PM
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I hope a 28j letter flies out the door to the 9th Circuit en banc panel that's considering Peruta !
I don't see how it would be relevant. Chester establishes strict scrutiny in the home with lower standards outside the home. This case has nothing to do with carry.
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  #135  
Old 02-05-2016, 12:23 PM
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Not quite; the 4th panel said the lower court screwed up, and now must re-hear the case with different rules for its analysis.

The reasoning for the remand to the lower court is what is getting approval here.
"Spanked!"

Oh Mr. Lower Court - please stay after class to write "strict scrutiny" 1000 times on the chalkboard.
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What compelling interest has any level of government in knowing what guns are owned by civilians? (Those owned by government should be inventoried and tracked, for exactly the same reasons computers and desks and chairs are tracked: responsible care of public property.)

If some level of government had that information, what would they do with it? How would having that info benefit public safety? How would it benefit law enforcement?
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  #136  
Old 02-05-2016, 12:30 PM
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One thing I've been wondering, is there a reason why the panel bumped the case back down to be considered under strict scrutiny, rather than do it themselves? The opinion seems to lay out a pretty good argument on why an awb goes against Heller and McDonald, and stops just short of saying it fails constitutional muster.
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  #137  
Old 02-05-2016, 12:32 PM
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Originally Posted by kcbrown View Post
I do. But the stench from the "reasoning" that would be employed would be unbearable:

  • "Public safety" is a compelling government interest.
  • "Assault weapons" and "large" capacity magazines are "dangerous" and thus implicate "public safety" merely by being possessed by the citizenry.
  • The law is narrowly tailored because it only bans those weapons, and not all.
  • The law is the "least restrictive means" of keeping those weapons out of the hands of the citizenry.

And just like that, the law passes "strict" scrutiny.


Why people think "strict scrutiny" is some sort of magic formula for upholding rights is beyond me ...
Your second point is easily and completely contradicted by facts - including and most notably those published by US DOJ
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  #138  
Old 02-05-2016, 12:53 PM
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One thing I've been wondering, is there a reason why the panel bumped the case back down to be considered under strict scrutiny, rather than do it themselves? The opinion seems to lay out a pretty good argument on why an awb goes against Heller and McDonald, and stops just short of saying it fails constitutional muster.
Good question. Perhaps by doing it this way there's less of a chance that it goes to en banc. In effect they told the District court that they weren't following Chester, which BTW was handed down by none other than the majority in this case (Traxler & Agee).
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  #139  
Old 02-05-2016, 1:04 PM
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Originally Posted by dfletcher View Post
Getting about halfway through the decision, it appears the court actually knows something about guns and the principles of self defense. The court referenced Heller as allowing for self defense in case of "confrontation" and I find that interesting. I'm just as likely to find confrontation outside the home as inside, yes?
That's what the 7th Circuit said in Moore v Madigan as I recall ....
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  #140  
Old 02-05-2016, 1:16 PM
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Your second point is easily and completely contradicted by facts - including and most notably those published by US DOJ
Yes, but the judge can just quote my 6 year old "you believe what you want to believe and I'll believe what I want to - case dismissed"
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  #141  
Old 02-05-2016, 2:34 PM
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Originally Posted by SnFour View Post
One thing I've been wondering, is there a reason why the panel bumped the case back down to be considered under strict scrutiny, rather than do it themselves? The opinion seems to lay out a pretty good argument on why an awb goes against Heller and McDonald, and stops just short of saying it fails constitutional muster.
Mostly a procedural thing, I believe. Appeals courts are there to determine if the mechanics of the decision were correct, they don't retry the case. Lower courts try cases, appeals courts review bad calls. The appeals court determined the wrong criteria were used in the decision, so the correct place for this case now is a lower court where they get a do-over using the right criteria.
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  #142  
Old 02-05-2016, 2:49 PM
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Yes, but the judge can just quote my 6 year old "you believe what you want to believe and I'll believe what I want to - case dismissed"
Exactly this. They can pick and choose whatever filing is convenient, no matter how illogical or insane.

If a higher court doesn't call them on it, that's that. As long as SCOTUS has abdicated any authority to enforce Incorporation, whatever happens in the lower courts stands.
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  #143  
Old 02-05-2016, 3:08 PM
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Your second point is easily and completely contradicted by facts - including and most notably those published by US DOJ
Oh, I quite agree. But courts that insist on siding against an enumerated Constitutional right aren't interested in mundane things like facts...

If most of the courts were really listening to the facts, then we would rarely have decisions like Friedman.
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  #144  
Old 02-05-2016, 3:12 PM
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Default The Supreme Court may have to rule on the right to keep and bear AR-15s

Never mind that the photo is an AK-type:

http://www.slate.com/articles/news_a..._gun_case.html
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  #145  
Old 02-05-2016, 3:35 PM
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Excellent news! Happy dance time!

Yes yes I know. This is just the beginning of months or even years long wrangling before we know the outcome for Maryland, let alone any larger implications to apply to California. But still, after years of bad news from the Federal Courts it's awfully nice to see something in the win column for once!

When was the last time we heard good news? Probably when the 7th struck down the Illinois CCW law, and that was back in December 2012.
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  #146  
Old 02-05-2016, 3:36 PM
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Even if they couldn't bring themselves to take down special cop exemptions, at least they got the core 2A part right.

Does this now create a circuit split the SCOTUS should address?
SHOULD, yes.

WILL, probably not.
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  #147  
Old 02-05-2016, 3:48 PM
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Wow, the writer of this article speculates that judges are going to be handing out AR15s like Halloween candy?

Trick or Treat.

Another highlight from the 4th's dissenting opinion:
"the AR-15, functions almost identically to the military’s fully automatic M16"

semi-auto, full-auto....a difference so minor it's not even worth mentioning.

Last edited by R-Cubed; 02-05-2016 at 3:50 PM..
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  #148  
Old 02-05-2016, 4:59 PM
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Default Kolbe v Omalley Decision (2/4/16):Maryland AWB Case

The way I see it the 4CA set up an interesting dilemma for the Attorney General. Any appeal (en banc or Supreme Court) would not be to argue the Assault Weapon Ban. It would be to argue the application of strict scrutiny. So the AG has two choices:

1. Let the ruling stand and likely lose the case as it is remanded to the District Court. But then the standard of strict scrutiny is enshrined in the case assuming it goes up the appeals ladder again. (This is true even if the District judge dishonestly misapplies strict scrutiny while ruling for the State, and if she did she would likely be overturned at the appellate level.)

2. Appeal the standard of strict scrutiny. The AG could appeal at the Supreme Court but what a risk. If they rule in favor of strict scrutiny then we win all the marbles. Even if they decline the case it sends somewhat of a message to all the other CAs. So I predict the AG will instead go the en banc appeal route. Nothing to lose, everything to gain, and the decision to risk it all at the Supreme Court can be deferred until the en banc process plays out.


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Last edited by Bhart356; 02-05-2016 at 8:54 PM..
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  #149  
Old 02-05-2016, 5:27 PM
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... So I predict the AG will instead go the en banc appeal route. Nothing to lose, everything to gain, and the decision to risk it all at the Supreme Court can be deferred...
The problem with this is that the Chester precedent is years old, and establishes Strict Scrutiny. Any en banc proceeding will essentially be an end run around the time limit on asking for en banc on Chester.

I don't think the court is going to be willing to overturn Chester. Just too big a departure from its rules.
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  #150  
Old 02-05-2016, 5:42 PM
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Fantastic news! I was so excited when I heard this! (sorry - about a day behind here obviously...)
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  #151  
Old 02-05-2016, 7:48 PM
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Not sure if it was mentioned before but the MD AG is also one of the authors of the law that is in question here (when he was a legislator and chairman of the judicial committee). He will absolutely appeal or request enbanc. He has a lot to lose politically if not. .
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  #152  
Old 02-05-2016, 8:23 PM
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Never mind that the photo is an AK-type:

http://www.slate.com/articles/news_a..._gun_case.html

Not surprising when you realize that the author wrote: "It will now likely have to answer this question: In a country where one bloody massacre seems to follow another, and 33,636 people were killed by firearms in 2013, does the court want to be in the business of handing out AR-15s like so much Halloween candy?"
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  #153  
Old 02-05-2016, 8:27 PM
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Originally Posted by R-Cubed View Post
Wow, the writer of this article speculates that judges are going to be handing out AR15s like Halloween candy?

Trick or Treat.

Another highlight from the 4th's dissenting opinion:
"the AR-15, functions almost identically to the military’s fully automatic M16"

semi-auto, full-auto....a difference so minor it's not even worth mentioning.

I agree. Repeal the NFA
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  #154  
Old 02-05-2016, 9:42 PM
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What a majestic ruling (4th circuit appellate re: Kolbe v. Hogan)
That being said lets be fair, rights are not enumerated they are God given.

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Identify primary, secondary and tertiary impediments to your God given rights.

This actually sums it up:

My situation here has become a difficult one. I've been officially accused of murder. The alleged victims were double agents. We spent months uncovering and accumulating evidence. When absolute proof was completed, we acted. We acted like soldiers. The charges are unjustified. They are in fact, under the circumstances of this conflict, quite completely insane. In a war, there are many moments for compassion and tender action. There are many moments for ruthless action — what is often called ruthless, what may in many circumstances be only clarity — seeing clearly what there is to be done and doing it directly, quickly, awake, looking at it. As for the charges against me, I am unconcerned. I am beyond their timid, lying morality, and so I am beyond caring.
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Old 02-05-2016, 10:34 PM
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Any appeal (en banc or Supreme Court) would not be to argue the Assault Weapon Ban. It would be to argue the application of strict scrutiny.
Excellent point for those who are a bit confused about what the ruling is about.
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Old 02-06-2016, 7:56 AM
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Excellent point for those who are a bit confused about what the ruling is about.
Here's a fantasy question to call CalGunners: Given a choice between a ruling requiring strict scrutiny OR a ruling which says the AWB is unconstitutional (including tasty bits about the unconstitutionality of laws against standard cap mags, EBRs and AKs), which would you prefer, and why?

I'd probably take the latter. Strict scrutiny properly applied would be the big win, but it seems, as KC pointed out, ultimately toothless and easily perverted in the face of judges who are failing to do their duty.

However a ruling which says, "You can't touch their EBRs, standard cap mags or AKs" seems to leave no wiggle room for the antis, and sets a baseline beneath which we cannot fall.
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Old 02-06-2016, 8:49 AM
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Originally Posted by Epaphroditus View Post
retired officers “are differently situated”


Curious phrase.
It would have to be handled delicately because there are no rights afforded to retired policemen in the constitution. So when a judge has to elaborate that people don't have 2nd amendment rights, but retired policemen do, that judge must tap dance in his/her brief.
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Old 02-06-2016, 8:58 AM
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Here's a fantasy question to call CalGunners: Given a choice between a ruling requiring strict scrutiny OR a ruling which says the AWB is unconstitutional (including tasty bits about the unconstitutionality of laws against standard cap mags, EBRs and AKs), which would you prefer, and why?
Jut to make it clear, this is a "fantasy question/answer" because we are not in position to choose between the two and because this is a case in 4th circuit so it's controlling only in that jurisdiction (while it would be persuasive in others.)

Between the two, I would choose the "strict scrutiny" any time. It's much more important to get a method for evaluating 2A cases than to thwart a particular attack on our rights because the former is a superset of the latter - if we get strict scrutiny for "arms" (or "keep" or "carry,") then we also get a virtual game over for gun control on that issue (more specifically, it's game over for "gun grabbing" under the guise of "gun safety") even if it takes a bit longer.

For example, if we had strict scrutiny from SCOTUS on "arms," we'd have no roster, no magazine limits, no 50 BMG ban, no bullet buttons, not even ban on NFA items in CA. If all we got was the reversal of the AWB, we'd be litigating each one of the above on merits and waiting for years just to get some of the bans upheld under intermediate scrutiny.

As for "tinkering with strict scrutiny," it's a possibility but it's a far, far stretch at this time since strict scrutiny has been applied to a host of highly controversial and unpopular issues. If there was a way to bypass strict scrutiny we would have seen it by now on other highly contentious issues such as abortion. There are likely enough judges who very strongly disagree with abortion *and* who would be willing to bend the rules on strict scrutiny if they think they could save lives AND get away with it.
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Old 02-06-2016, 9:03 AM
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Originally Posted by speedrrracer View Post
Here's a fantasy question to call CalGunners: Given a choice between a ruling requiring strict scrutiny OR a ruling which says the AWB is unconstitutional (including tasty bits about the unconstitutionality of laws against standard cap mags, EBRs and AKs), which would you prefer, and why?

I'd probably take the latter. Strict scrutiny properly applied would be the big win, but it seems, as KC pointed out, ultimately toothless and easily perverted in the face of judges who are failing to do their duty.

However a ruling which says, "You can't touch their EBRs, standard cap mags or AKs" seems to leave no wiggle room for the antis, and sets a baseline beneath which we cannot fall.
If as you say, judges were not to do their duty, then what difference would it make what any favorable ruling said?

In the event a state or locality violated that ruling, one would have to sue and appear before those judges.
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Old 02-06-2016, 9:13 AM
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However a ruling which says, "You can't touch their EBRs, standard cap mags or AKs" seems to leave no wiggle room for the antis, and sets a baseline beneath which we cannot fall.
There is plenty of wiggle room. CA can enact a slightly different AWB and then argue that "it's not the same." If you believe that the courts will misapply strict scrutiny, then there is certainly absolutely zero chance they wouldn't misapply intermediate scrutiny to confirm "it's different" and uphold the ban.

Now you have the AWB upheld, so the legislators can move on to ban internet sales of ammunition, require background checks, permits, fingerprinting and video recording of purchases, ban 223/556 by caliber (same as 50 BMG,) etc.
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