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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel. |
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#241
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But in any case, let's proceed under the assumption that my answer to that question is "yes". Quote:
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
#242
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FGG btw I want to thank you as well for being frank and forthright, and downright constructive. For the record
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The Rifle on the Wall "“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamala Harris Lawyers and their Stockholm Syndrome |
#243
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That doesn't change the logical implications of what the Court said, only whether they will be logically consistent with their own pronouncements. They almost certainly won't be.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
#244
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I was mocking Tincon's position there, but it sounded like I was imputing it to you. My bad lol.
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I put "describing" in quotes because it was you who characterized this text as a "description of strict scrutiny." You haven't "shown" anything of the sort. You haven't even articulated the strict scrutiny standard as traditionally expressed.
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#245
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It's a moment of weakness.
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#246
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
#247
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As to the second assertion, it assumes two things: 1) the text in question is in fact a "description of strict scrutiny" and 2) the description is accurate. Not even Breyer says he is "describing strict scrutiny," but assuming that's what he is doing, it cannot be reconciled with his express rejection of strict scrutiny immediately thereafter. I just hit refresh and noticed your latest post and will take it from there.
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Last edited by FABIO GETS GOOSED!!!; 11-08-2013 at 12:25 PM.. |
#248
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My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#249
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My patience with you has officially reached its limit.
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#250
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Article: Glock defends 2nd Amend Foundation's CA law suit.
Interesting article. Nice to see another major gun manufacturer actively joining in CA's continuing 2nd Amendment fight for all of our rights.
Article in its entirety: "Attorneys for Glock, Inc. have filed an amicus curiae brief supporting the Second Amendment Foundation’s case in California, Pena v. Lindley, a lawsuit challenging the state handgun roster requirements that include microstamping and magazine disconnects. Glock produces some of the most popular pistols in the world, and their guns are carried by law enforcement professionals and legally-armed private citizens across the United States. “We are proud of Glock for stepping up to the plate,” said SAF founder and Executive Vice President Alan M. Gottlieb. “Glock believes, as do we, that California’s requirements place an undue burden on both consumers and manufacturers.” According to the brief filed by attorneys Erik S. Jaffe of Washington, D.C. and John C. Eastman of Orange, Calif., Glock pistols are like the majority of semi-auto pistols manufactured today, because they do not include the magazine disconnect. Indeed, the brief notes that “the overwhelming majority of law enforcement agencies require pistols that do not have a magazine disconnect mechanism.” Glock pistols, nor any other handgun in common use, can comply with California’s “microstamping” mandate, the brief notes. As a result the newest generation of Glock pistols is not on the California roster, and therefore cannot be sold to private individuals in that state. “Under the First Amendment,” Gottlieb observed, “California is not allowed to compile a list of books you can read, and under the Second Amendment the state should not be allowed to compile a list of handguns you can own.” Both Jaffe and Eastman clerked for Supreme Court Justice Clarence Thomas, Gottlieb noted. Mr. Eastman has considerable experience in civil and constitutional litigation, and was a candidate for California attorney general in 2010. He is a law professor at Chapman University. Mr. Jaffe also clerked for Judge Douglas H. Ginsburg of the U.S. Court of appeals in the District of Columbia. He has litigated in Washington, D.C. and has considerable experience in constitutional challenges. “Glock definitely has an interest in this case,” Gottlieb said, “and their expertise could be crucial at this point. We’re glad they have chosen to weigh in.” http://www.outdoorhub.com/news/glock...ndations-suit/
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It`s funny to me to see how angry an atheist is over a God they don`t believe in.` -Jack Hibbs -ΙΧΘΥΣ <>< |
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Your response to 44 pages of the dissent "implicitly" proposing intermediate scrutiny when he could have just come right out and said "I'm proposing intermediate scrutiny" is what again? Is that what the majority is doing as well, "implicitly" rejecting intermediate scrutiny instead of "explicitly" saying that's what they're doing (like they did explicitly with rational basis)? You still haven't answered the question I've asked about 3 or 4 times already by the way.
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Last edited by FABIO GETS GOOSED!!!; 11-08-2013 at 11:48 AM.. |
#252
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. Last edited by kcbrown; 11-08-2013 at 11:40 AM.. |
#253
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Nice! The sleeping Bear awakes!
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"Bruen, the Bruen opinion, I believe, discarded the intermediate scrutiny test that I also thought was not very useful; and has, instead, replaced it with a text history and tradition test." Judge Benitez 12-12-2022 NRA Endowment Life Member, CRPA Life Member GLOCK (Gen 1-5, G42/43), Colt AR15/M16/M4, Sig P320, Sig P365, Beretta 90 series, Remington 870, HK UMP Factory Armorer Remington Nylon, 1911, HK, Ruger, Hudson H9 Armorer, just for fun! I instruct it if you shoot it. |
#255
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Last edited by FABIO GETS GOOSED!!!; 11-08-2013 at 12:40 PM.. |
#256
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My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#257
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The two questions were rhetorical, here's the question that's been asked multiple times before that you haven't answered:
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Last edited by FABIO GETS GOOSED!!!; 11-08-2013 at 12:48 PM.. |
#258
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No. He mentions Turner more than once, and the second reference to Turner is likely more inclusive of his "interest balancing" intermediate scrutiny test. This would explain why he says "the standard" in Turner. Are you suggesting that the only standard mentioned in Turner is deference to the legislature?
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My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#259
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Last edited by FABIO GETS GOOSED!!!; 11-08-2013 at 1:10 PM.. |
#260
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Eh, good point.
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My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#261
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Your exegesis could use some careful revision IMO, I'm not saying that disparagingly but encouragingly. I suspect a better argument could be made that the dissent is applying intermediate scrutiny, using the dissent's application of the "interest balancing-inquiry" in the dissenting opinion itself to illustrate, but I haven't thought through the details; using the "standard set forth in Turner" argument as the centerpiece is problematic IMO for the reasons discussed.
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#262
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Then let's get to the specifics. Is the following statement by the dissent correct? Quote:
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
#263
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My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#264
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To be honest, without further research I don't feel I have sufficient command of the strict scrutiny standard and its application to render an opinion on that. My hypothesis would be no.
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#265
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Let's go with your hypothesis for the moment. Why, according to that hypothesis, is dissent's statement incorrect?
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. Last edited by kcbrown; 11-08-2013 at 2:26 PM.. |
#266
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Strict Scrutiny The law or policy must satisfy three tests: It must be justified by a compelling governmental interest. The law or policy must be narrowly tailored to achieve that goal or interest. The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest. Breyer on "compelling government interest" with respect to the Heller laws Quote:
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So the answer is no, he wouldn't endorse strict scrutiny as commonly performed; and no, it doesn't always devolve into an interest balancing inquiry; and no, there's nothing unique about gun regulations in this respect. Last edited by RipVanWinkle; 11-08-2013 at 2:44 PM.. Reason: added "t" |
#267
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Implicit in what I said is that I don't think you have "shown" that the methods used by the dissent in the course of its "interest-balancing inquiry" are in fact the methods of strict scrutiny, or that Breyer is claiming that they are. (If you are not making these claims, please say so.) Your position as I understand it depends on these assumptions, and you have done not much more than say "the description looks accurate to me." (Again if that is not your current position say so.) I think the dissent's rejection of strict scrutiny is evidence simply that he is rejecting strict scrutiny, and not evidence that he is being "illogical" or contradictory by simultaneously endorsing and rejecting strict scrutiny. I also think that evidence (i.e., the dissent's rejecting strict scrutiny) is consistent with the majority's assertion that they do not recognize the methods of the interest-balancing inquiry as belonging to any of the traditionally expressed levels of scrutiny.
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#268
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Good post RipVanWinkle; my hypothesis based on my general understanding of the strict scrutiny standard is that the particularized weighing of burdens in the dissent's "interest-balancing inquiry" aka "proportionality approach" is not included in the "strict scrutiny schema" as you say.
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#270
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However, it looks to me like Breyer is claiming that he is using the "interest balancing inquiry" of strict scrutiny. Since he has already reduced the question of compelling government interest to a constant, I suppose that leaves this question: is what remains of strict scrutiny in practice, as Breyer appears to claim, an "interest balancing inquiry" and, if so, is there anything left of strict scrutiny that is not covered by that inquiry? Quote:
I was attempting to use this particular line of thought as a means of providing additional support for my position, but my position does not strictly depend on it. Quote:
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ETA: In light of the fact that you intend to make clarifying edits later, please regard the above as preliminary.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. Last edited by kcbrown; 11-08-2013 at 3:15 PM.. |
#271
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And, further, that you basically force us to justify our opinions by asking (sometimes frustratingly vague) questions. My opinion of you was wrong. What you're doing is immensely valuable, if sometimes frustrating, and I apologize for being enough of a dullard to take this long to really see it. While you may have reached the limit of your patience with me, I must ask you to nonetheless persevere. So carry on poking holes in my arguments! And I think I'll try following your suggestions of where to look, etc., even if they're vague. While others have found your method of direction frustrating, I can see a wisdom in it as well as some immense benefit that can come from it. My only request is this: if you see something we say that is incorrect after an attempt to research the answers to your questions, don't merely say that they're incorrect; rather, drop more hints, more things to research that may lead to eventual enlightenment.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
#272
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I still find it difficult to see strict scrutiny as an interest balancing act.
That is, in rational basis, the government's interest tends to come first. In strict scrutiny, the government's interest comes last.
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Life SAF Member Life GOA Member EFF Member x7 |
#273
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In strict scrutiny, the law stands unless the government interest in question isn't "compelling" (for gun laws, it always will be), the law isn't "narrowly tailored" (an ostensibly subjective question), or the law isn't the "least restrictive means" (which in practice is actually just a guideline since there are laws that have withstood this test despite not actually being the least restrictive means. In practice, this means the law stands if the court doesn't deem the law to be too restrictive). In other words, it's perfectly fine to infringe upon even the most important rights in whatever ways you wish as long as you use a sufficiently soft touch. When pitted against the most sacrosanct, most heavily protected rights, the above is the most the courts do with the laws that are acknowledged to infringe upon them. Strict scrutiny isn't as strict as you might think: http://papers.ssrn.com/sol3/papers.c...ract_id=897360 In rational basis, on the other hand, the right is essentially deemed to not exist at all. There's a reason we're now so incredibly burdened with laws and regulations covering anything and everything. Between the above and the doctrines of "constitutional avoidance" and "presumption of constitutionality", the hurdle for challenging any law, even those that infringe upon the most sacrosanct rights, is monumentally high. But not impossible. The courts haven't entirely abandoned their posts. But they do seem to be asleep at them.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. Last edited by kcbrown; 11-09-2013 at 1:46 AM.. |
#274
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I have to thank kcbrown, tincon, and FGG for keeping this discussion going and in such an educational and enlightening manner. It prompted me to read Breyers dissent. After which, I am more concerned that the interpretation of the COTUS is left in the hands of such people.
My biggest problem (and there are many) arises with this statement: Quote:
I really don't care what type of scrutiny or interest balancing tests he is proposing, simply because Breyer and the other dissenters will never admit that the individuals RKBA can ever outweigh the governmental interest of "protecting the citizenry" (ie. reducing crime and perceived public safety). |
#275
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Deferring to the legislature on a matter involving a Constitutionally-protected right is identical to insisting that the right doesn't exist at all. The protection of a right via enumeration in the Constitution, as the Supreme Court majority in Heller said, "takes off the table the power to decide, on a case by case basis, whether the right is really worth insisting upon". When a Constitutional right is being infringed by a law, the only reasonable way to interpret the above statement is that the right, and not the law, always wins unless, at the very least, some other Constitutionally-protected right is being protected by the law. Otherwise, what is the real difference between insisting upon the right and not insisting upon it? Insistence upon the right must have a real-world effect that favors the right in some meaningful and substantial way, else it means nothing at all.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. Last edited by kcbrown; 11-10-2013 at 7:03 PM.. |
#276
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How can we find these reasonable limits? Presumably we cannot regulate nor license the ownership of tongues or pencils.
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Life SAF Member Life GOA Member EFF Member x7 |
#277
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My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#278
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#279
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He probably would argue that as the interests of the government become more compelling, the presumption of constitutionality of laws increases. He views the "constitutional conflict" as between the right of Congress to legislate, and the right to keep and bear arms. The majority, having decided that the right to keep and bear arms for self defense is an individual right (remember, that was also in dispute in this case), wants to adjudicate the issue in the framework of existing law dealing with challenges to laws impinging on enumerated, individual constitutional rights. The bulk of that jurisprudence has dealt with 1st amendment issues and is the source of the "Levels of Scrutiny" approach. The whole basis of that approach presupposes that as the law(s) under examination impinges more on the core right, the assumption of constitutionality diminishes, or evaporates entirely. When strict Scrutiny is applicable the case of the government (constitutional right to legislate) must be very compelling indeed to even be worthy of a hearing. I think the Heller majority wants to retain the "Levels of Scrutiny" framework for all such cases, for obvious reasons of at least consistency and economy. Breyer, on the other hand, wants to carve out a special exception for gun rights. He says so: Quote:
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#280
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Does anyone know if that view (that strict scrutiny means we start from a presumption that the law is unconstitutional) is widely held among the SCOTUS Justices?
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