judge-richard-leon

“Because the right to bear arms includes the right to carry firearms for self-defense both in and outside the home, I find that the District’s ‘good reason’ requirement likely places an unconstitutional burden on this right. Accordingly, I hereby GRANT plaintiffs’ request for a preliminary injunction and enter an order that enjoins the District of Columbia from denying concealed carry licenses to applicants who meet all eligibility requirements other than the ‘good reason’ requirement. . . .” With that, as Eugene Volokh reports, DC District Court Judge Richard Leon has ruled that, in keeping with the Heller decision, the nation’s capital must be shall issue . . .

As Judge Leon wrote,

Because the Second Amendment’s text places the right to “keep” and to “bear” arms on equal footing, it follows that the right to “bear” arms for self-defense also lies at the core of the Second Amendment’s protections. Indeed, the purpose of the Second Amendment, as articulated by the Supreme Court, supports this conclusion. . . . The need for self-defense is, of course, greater outside the home than it is within it. . . . Furthermore, I note that plaintiffs here are the very type of “law-abiding, responsible citizens” whose Second Amendment rights are entitled to full protection under Heller.

And who are those plaintiffs? The original case, Grace vs. D.C., was brought by Matthew Grace and the Pink Pistols.

The Pink Pistols is an international organization dedicated to the legal, safe, and responsible use of firearms for self-defense of the sexual-minority community. Chapters may be found across the United States and Canada. Though the Pink Pistols is for the GLBTQ community, it is not solely composed of the GLBTQ community, and all are welcome to join.

As Volokh notes, this likely won’t be the court’s last ruling on the case. Expect an appeal by the District and a stay until the case can be heard by the DC Circuit. And maybe then by the Supreme Court. How’s that for driving home the importance of who selects the next two or three justices?

 

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100 Responses to BREAKING: Federal Judge Rules DC Must Be Shall Issue

  1. Great news. I wonder if this will do anything to influence CA9 in Peruta.

    What it means is that now, more than ever, politics matter. Should this be appealed, it will undoubtedly go to SCOTUS after the next presidential elections.

    • Since this is a district court (i.e. trial court) opinion, absolutely nothing, even though it reinforces the original 3-judge majority opinion by Judge O’Scannlain that came to the same conclusion. Trial court decisions are merely persuasive, not binding, and the en banc panel is not likely to be “persuaded” by anything less than the Supreme Court, by whose opinions it is bound. Moreover, the City is likely to file an interim appeal or writ, with a request for immediate stay. Based on Gura’s prior experience in the D.C. Circuit, and the interest of higher courts in maintaining the status quo pending appeal (even when that means a denial of guaranteed rights pending decision) a stay is very likely to be granted.

      • “… the en banc panel is not likely to be ‘persuaded’ by anything less than the Supreme Court, by whose opinions it is bound.”

        Bwa, ha, ha, ha, ha, ha, ha, ha, ha!!! I don’t see the 9th Circuit Court of Appeals giving two $hits about a ruling from the U.S. Supreme Court … any more so than other courts who have given a giant middle finger to Heller and McDonald.

        • Hillary’s four SCOTUS appointees (yep, in 8 years, she will appoint that many, Sorry) will not only toss this if it goes that high, they will confirm the constitutionality of every anti-gun law that comes their way. The High Court will be permanently leftist.

  2. Hmm. Is it just me or does there seem to be a lot of these kind of court cases going the way of the second amendment lately?

    Just makes me wonder what they are doing with the other hand.

    • Actually, I think it was the liberalization (in the classic sense) of the gun laws in numerous states with no negative repercussions/bloodbaths that has made these rulings easier. There is plenty of evidence to now counter the speculative, ‘…there will be a bloodbath without gun control…’ arguments.

      • NOTE to anyone who just read that…that’s a reply to a post that got deleted. As are many of the ones below.

    • Actually we have more gun rights than we did 50 years ago. Especially when it comes to the right to carry.

      • Include CA, MD, CT, NJ in that losing side.

        Haven’t heard how the CA ‘gunpocalyse’ hearings went yesterday.

        • California gunpocalypse.

          The bills are:

          AB 156: Bans common ammunition purchases, creates a DOJ database of ammunition owners.

          AB 857: Requires serialization of ALL unserialized firearms, both retroactively and moving forward.

          AB 1135: Bans common and constitutionally protected firearms that have magazine locking devices, such as “bullet buttons”.

          AB 1511: Criminalizes loaning of firearms between personally known, law-abiding adults.

          SB 880: Bans common and constitutionally protected firearms that have magazine locking devices, such as “bullet buttons”.

          SB 894: Victimizes victims by criminalizing the failure to report lost and stolen firearms within a short time frame.

          SB 1006: University of California taxpayer funding for gun control research.

          SB 1407: Requires serialization of ALL unserialized firearms, both retroactively and moving forward.

          SB 1446: Retroactively bans possession of lawfully acquired, standard capacity magazines that can hold over 10 rounds.

          SB 1235: Bans common ammunition purchases, creates a DOJ database of ammunition owners.

          The Senate Appropriations committee heard and passed TEN anti-gun bills with no regard for any of the rules that are in place to allow for a more thorough review and not cost the state millions of dollars.

          This $hit has got to be stopped!

    • We’re winning because gun sales continue to increase, and the number of gun owners continues to increase, in spite of the Brady Bill and other infringing hurdles our government has put in our path.

    • If Hillary is elected president with a democrat Congress on her coattails, the Nation will have an anti-gun leftist Supreme Court for the remainder it’s existence. That court will rubber stamp a big “LEGAL” on all anti-gun legislation that gets passed. It will do the same for all anti-business legislation and wreck the engine of out prosperity. Look at the Venezuela of today for a peek at that future.

    • Winning until DC appeals the case to some other judge who says ‘good cause’ is totally acceptable.

    • “Not finished” or “not perfect” doesn’t equate to “losing”.

      In the 80s we were on the verge of a complete handgun ban, in the 90s rifles *were* banned on cosmetic features.

      Now, the majority of the county has CC and more normal everyday Joes are carrying than ever. Younger people and minorities are becoming gun owners at record rates. Public sentiment against an AWB is as high as it has been in 30 years.

      No, we have not *won*. But we are pretty well into the process of *winning*.

      That doesn’t mean we can let down our guard. But it would be foolish to not acknowledge the gains just because they aren’t complete, total and finished yet.

  3. Leon was a Bush 43 appointment. Now the case will go to the Circuit Court — the same one where Merrick Garland presides as chief judge and is further stained by the foul fingerprints of Clinton and Obama.

    More power to the Pink Pistols. They are 2A stalwarts.

  4. We’re losing? Look at the gif of conceal carry laws on wikipedia and you’ll see how far the landscape has shifted.

    No state is a non issue (some like NJ are in practice), AWB was killed, etc. after the horrible sandy hook murders. Look how many are now constitutional carry, the shift in public support, etc. Young people are very pro 2a.

  5. “Jeez, another group of old white, hetero NRA gun nuts trying to get minorities killed again.

    Wait, the plaintiffs are who again?”

    Well played, Pink Pistols.

      • EXACTLY. And that makes it all the better that it’s the Pink Pistols who won this case. The progressive legions talk big, but true equality and freedom scare them spitless.

  6. They SHALL issue when they are good an ready, damn it!

    Next stop, NY, NJ, and points west!

      • Theres an important difference between “I can vote for Hillary” and “I am able vote for Hillary”

        I’m able afford to go straight to the range after work today, burn through a couple hundred rounds and then pick up a new AR. Of course, I can’t because that would be a tremendously irresponsible use of my money.

        • And voting for Hillary would be an irresponsible use of your vote. Note that if you fail to vote for the candidate who has a decent chance of beating Hillary, you are using your vote irresponsibly in that case as well.

    • If people of your mindset do not vote for Trump then you are repeating the error of 1992 and allowing Ross (Dickhead Perot) in electing another Clinton and when “she” is done with her wizardry please do not come back here wringing your hands about what you and your like minded allowed.

  7. This is Huge!!!

    The opinion has implications in many other areas as well. DC still has an onerous process now it just not capricious.

  8. Heller was about as black letter law as a SC ruling gets. This crap gets dragged out for years, despite a crystal clear ruling from the Supreme Court, and relitigated forever. When is enough enough? At what point can a federal judge say “Quit playing games!” and just start locking people up for contempt of court?

    I know, I know, the federal judiciary has about as many armored divisions at its disposal as the pope does. Still, a court can order the executive branch to enforce a ruling. If the executive branch refuses, well, now we have a major problem.

    That’s a salutary constitutional crisis I would welcome. Let’s put the government’s lawlessness on full display for all to see.

    • “Let’s put the government’s lawlessness on full display for all to see.”

      Hasn’t it already been on full display for all to see for several decades?

      • Almost. Since the New Deal, the Supreme Court has been complicit in the perfidy. Its rulings lend a mantle of legitimacy to the unconstitutional, even anti-constitutional, assault on freedom perpetrated by the other branches. We haven’t seen a true crash of branches in this nation’s living memory, not over anything constitutionally virtuous, anyway.

        Cloaked by the Supreme Court, both Congress and the Executive branch have been free to vivisect the body politic with impunity and inscrutability. The people can’t see it. It would take a monumental, morally unambiguous clash of institutions to change anything.

        • “It would take a monumental, morally unambiguous clash of institutions to change anything.”

          I think that might be the locker room problem about to rear its ugly head. Any government entity that orders schools to let boys use girls locker rooms is going to find a huge problem on their hands.

          As recently as 20 years ago, one high school told its girls to call 911 if any girls observed any male figure in the girls locker room. But now we are supposed to welcome teenage boys into the girls locker room with open arms? I don’t think so.

    • While the Court has the ability to order the Executive, the Executive has shown spine and ignored court orders before when he that was disagreed with the court’s position. “John Marshall has made his decision; now let him enforce it.” Those are the famous words uttered by President Andrew Jackson in relation to United States Supreme Court Chief Justice John Marshall’s 1832 opinion in Worcester v. Georgia striking down a Georgia law that sought to regulate the comings and goings of white people in Native American land. While the current occupant of the Executive Suite is not AJ, he has demonstrated a will to interpret authority in a manner entirely in keeping with his personal views of how things should be, not necessarily the way things are.

    • “Still hanging on”, perhaps. “Going strong”? I suspect the men who wrote the Constitution would be shocked and ashamed at how it’s been twisted, stretched, and ignored in the last century or so. They made two assumptions that haven’t borne out in the long run: they assumed that the citizenry would remain engaged and vigilant, acting as a final check on government overreach, and they assumed that future members of the “governing class” would be people with at least a tiny shred of honor, integrity, and shame. The lack of both together is proving fatal to the system they designed.

    • We’ll take our victories where we can, but “circling the drain” is probably the more apt description of the Constitution today.

    • It’s still around but no where are strong as it should be. The new crap interputation that it is a living breathing entity, it was supposed to be a living entity under the osperices of the fact that it could be ammended but this b/s thing of the courts applying current interpitation, world law and sentiment. FISA courts, warrantless data collection, them saying that what they meant ws this.
      What they said was what they meant, they were farmers who knew a strong federal government was bad. They wanted people to be able to speak and practice their religion. They were afraid of the government and foreign powers that they had fought to release themselves from the oppression, that why they didnt want a standing army, they knew it could be used agianst it own people.
      They wanted to make sure people of the future could defend themselves from others and the government. If it was about hunting then all hunting licensing and duck stamps are essential a Poll tax and should be unconstitutional. I have never heard a liberal claim hunting tags, fees and licenses are unconstitutional because the right to bear arms was so we could hunt. Even those deluded fools know that that dog won’t hunt.
      The founding fathers would be appalled by the rough shot interpretation the court have played for all these years that are for “society’s greater good”. These were right that they believed came from God, and as such they should be absolute and protected from government interference.

  9. “As Volokh notes … [e]xpect an appeal by the District and a stay until the case can be heard by the DC Circuit.”

    Oh . my . goodness … I am so sick and tired of the bull$hit in the courts. A judge has made a plain, simple, and clear ruling consistent with the United States Constitution (you know, the Supreme Law of the land) and a plain, simple, and clear ruling of the U.S. Supreme Court. And that ruling stops a government entity from interfering with exercise of a fundamental right spelled out explicitly in the Bill of Rights. A higher court that swoops in and negates (issues a stay of) this ruling is flat out obscene and violates all decency and the rule of law.

    Imagine a jurisdiction that required a license to express political speech … claiming that the jurisdiction has a compelling government interest in preventing property destruction and deaths that must accompany expressions of political speech … and only granted political speech licenses to people with training who stated a just and compelling reason why they are special and need their political speech license. Now imagine a court order that prohibits that jurisdiction from enforcing their political speech licensing law. So far, so good. Finally, imagine a higher court overruling that order and issuing a stay until the Appeals court can hear the case … because we cannot have people dying in the streets in expressions of political speech.

    Excuse me while I vomit.

        • In this state, they suggest urination. Not sure how they’re going to register and permit the male anatomy, but give Boulder some time, I’m sure they’ll figure it out.

  10. I hope this is the case that eventually gets heard by the Supreme Court. For the very fact that because it is the PINK PISTOLS who are fighting for gun rights, and would fly in the face of the anti NRA narrative. And perhaps…. Just perhaps…. Scalia may have influenced a fellow justice enough to change her mind and a silent supporter sits on the bench already.

    • Scalia may have influenced a fellow justice

      if you’re referring to Kagan, I’d say there’s no chance at all. She may be gay, but she’s no friend of the Pink Pistols and an enemy of 2A.

  11. “There is no doubt, Senator Leahy. That is binding precedent entitled to all the respect of binding precedent in any case. That is settled law.”

  12. We aren’t winning ALL of the legal battles, but we are winning the war.
    * Record sales of firearms & ammo
    * Lots of new shooters, many of them women, and even some in racial minority demographics. This adds to the pro-2A voting block.
    * More Constitutional Carry states.

    Seriously, if I were a gun-hating liberal, I would be frustrated to the point of despair.

      • Both of you are wrong, with “trannies” being all the rage these days from the bisexual presiDUNCE on down to the media the “T” comes first at least until they cut, I mean ‘surgically remove” the “top” of the “T”,

  13. Stoop, we’re winning, that’s why the left is sounding so shrill when they pull their ‘The sky is falling!” crap.

    25 years ago, very few in the US could carry concealed. Since then, most can now carry carry concealed, the number of guns in the US has nearly *doubled*, and gun murders have fallen in *half*.

    THAT is why we are *winning*…

  14. I love the “Must be Shall Issue” thing. So it will be “shall”, in other words, won’t, but they’ll say they thought about it.

  15. Question for the TTAG ‘legal eagles’:

    When SCOTUS decided Heller, could they have avoided McDonald, et all, if they had worded their decision (to the effect of) “The 2A means what it says, no matter where you live or where you go (except prisons or courthouses)?

    • Goeff PR,

      No snark intended, just a matter of fact response: your question is irrelevant since the courts around the nation act with impunity in clear violation of crystal clear rule of law.

      We are now in a chapter of our nation’s history where our courts uphold their political party platform as the Supreme Law of the Land. In other words we are now in the “might makes right” phase of our nation. This will not end well for people who are not enamored with the political party platform that is in power.

    • That would have been over-reach that many criticize. The only issues before the court were
      – Was DCs ban on handgun ownership constitutional?
      – Were the DC firearm storage requirements constitutional?

      • SCOTUS’s ruling that DC’s ban on handgun ownership was unconstitutional because BANS ON GUNS ARE UNCONSTITUTIONAL.

      • What’s different about courthouses is that location is where it’s easiest to dispense justice on someone who was just found not guilty for child rape, for example…

    • The Supreme Court really couldn’t have bypassed McDonald by expanding Heller, because that part would have been dicta, which is essentially evanything a court says that isn’t necessary for the decision. Heller was pure 2nd Amdt, which, by its wordings, is only applicable as a limitation to the federal govt (which includes DC). McDonald takes the next step making it applicable to the states through incorporation by the 14th Amdt. Keep in mind that the Bill of Rights is not consistently and completely incorporatedre by the 14th Amdt., which means that merely finding that the 2nd Amdt RKBA is a fundamental right against the federal govt was not sufficient to prove that it is a fundamental right against the states. (And finding it fully incorporated in Heller would have been dicta since that was never a legal issue in that case).

      Yes, a bit complicated, but that is how our legal system works.

  16. There are quite a lot of advantages to bringing us gay gun owners front and center, especially in these days of identity politics. When you turn the tables on the anti-gun liberals with the fact that the LGBT community is the target of the majority of hate crimes in this country, they can’t counter it. Any attempt to counter-play identity politics on their part ALWAYS backfires spectacularly.

    • Look, I’m glad you enjoy your second amendment rights, I think any law respecting citizen should.

      But c’mon with the hate crime thing. This is a terrible term.

      There are a lot of black racists in this country, and a lot of them commit violence against white people. Just because it’s not PC to call such thing hate crimes, do they not fit the definition of a hate crime? Are you telling me that there is more anti-gay violence in this country than there is black on white ‘hate’ oriented violence? I think that’s a bit of a stretch.

      This whole thing about making the intent of the violent person part of the crime is wrong. Violence is wrong, thinking is not. I really don’t care if someone hates me because I am white or not gay or anything. I care when such people take action on such feelings and commit crimes, and it is the crime that is morally wrong.

      You want your gayness considered equal, there you are, equal. I don’t care about your hate crime BS, which is what it is, in my opinion. If you are attacked with violence I think it would be just as wrong as were you attacked just for your money.

    • Exactly. It’s the chief reason I encourage all my gay friends to learn to shoot and get involved in 2a topics.

      The sad truth is that the more LGBTQ rise up to exercise their rights, the more the democrats (aka the former party of the KKK) will realize they cannot use this minority to further their agenda. And then they will move on to another one that can help push the country toward their ideal… Venuezuela.

  17. So… what about the “crime” of possession of spent brass? Never mind loaded ammo.

    As it is, I’d never drive one of my vehicles into the district. No telling how much brass is rolling around in there somewhere.

    • I had the mag baseplate come off my carry piece in my car once.

      Found all but one of the rounds.

      No DC for that car, ever!

  18. As others have pointed out Pink Pistols are the perfect plaintiff. A little hard for the media to push its same old tired propaganda bullshit about OFWG racist gun owners, when the plaintiffs are gays who – like anybody – want to be able to have effective tools to defends themselves.

  19. Occasionally, someone who understands the English language gets to be a judge.

    Remarkable.

  20. “And maybe then by the Supreme Court.”

    We did that already – hence the Judges reference to Heller…this is getting to be ridiculous. I can feel the concept of ‘rule of law’ unraveling at the edges of our society. How long before we are all back to the 9th century?

  21. How can the left parse this? The original suit was bought in part by the Pink Pistols, which, as stated, supports and encourages firearms use by the gay, lesbian, transgender, bisexual, and queer community.

    And right now the left goes well out of it’s way to defend the rights of that community. So, lefties – gays want guns. What shall you ever do?

  22. We are NOT winning if conditions are being placed on the Second Amendment! ALL DC GUN LAWS ARE UNCONSTITUTIONAL!

    • You’re confusing “winning” and “won.” “Winning” is a progression in the direction of “won”

      We’ve “won” when there are no such conditions as you (rightly) complain about.

      We’re winning when we see the existing conditions laid on our rights, being removed faster than new ones are added. Which does appear to be happening, on balance, even if certain parts of the country are going down the drain.

  23. This clearly shows that we need to join together for what we agree upon collectively, rather than a death by 1000 disses, distractions, and cold shoulders.

    Gays / Liberals / Fudds / “Gun Nuts” all need to band together on as much as possible.

    • Agreed.

      Now please explain it to the multitude of twits who will scream at every liberal and atheist that they must not be true gun rights supporters. The hostility to a coalition like you imagine comes from those people.

    • Are we talking liberal of the old form? A libertarian? Or are you saying liberal when you mean progressive?

      Such a group will likely have few progressives, more than zero, yes, but not that many.

      And were you to gather such a group, that really believed in the constitution and the right to keep and bear (see why so few progressives?) and to work to further that right, I think people would be very supportive of one-another.

      If all 100 mln of us marched on DC (sans arms), I think something like this would have an impact on them. Do this on a workday and make a point that no taxes are being paid during the time they are there. Make it last say, a week. Every day speeches on the mall. All very peaceful. Make it known that if there isn’t change then we will be back. Lots of details of course that all can be worked out.

      Not easy to do, certainly. But at this point I think this is the very bottom of the list of things that will possibly produce actual results. Keeping it all peaceful is important.

      I’d be there for certain.

      • And were you to gather such a group, that really believed in the constitution and the right to keep and bear (see why so few progressives?) and to work to further that right, I think people would be very supportive of one-another.

        You missed the part where some hyper-sanctimonious “Christian” (I should hope most Christians would not want to be associated with him) had a post a couple of days back claiming that no atheist could be a gun rights supporter. That’s called not being supportive of people who want to be your allies in the cause, over a totally non-relevant factor.

        He did, by the way, get some support in the comments from regulars here. Not just those reacting to the atheists who (naturally) took umbrage at what the guy said, but TTAG regulars who agreed with what he said about atheists. People I would be happy to work with on this issue…but they apparently think they should refuse to work with me because I’m not “real” enough for them.

        If all 100 mln of us marched on DC (sans arms), I think something like this would have an impact on them. Do this on a workday and make a point that no taxes are being paid during the time they are there. Make it last say, a week. Every day speeches on the mall. All very peaceful. Make it known that if there isn’t change then we will be back. Lots of details of course that all can be worked out.

        What you are describing here is what, back in the day when socialists were primarily labor advocates, was called a “general strike” and such is VERY effective. The problem is, it’s hard to get going, you need a huge portion of the entire population (not just a huge portion of POTG) mad as hell–mad enough to forgo paychecks most of them need (almost everyone I know lives paycheck-to-paycheck, and they’re hardly minimum-wage-earners)–all at once. We simply aren’t there yet. If you think people are discontented now, you have seen NOTHING like what is needed for a general strike to happen, and succeed.

        • “had a post a couple of days back claiming that no atheist could be a gun rights supporter”

          Well I suppose I did miss that, but it’s frankly absurd. Constitutional rights and protections apply to all members of our society and is even explicitly called out as to applying to all religions, and atheism is just one of many religions choices.

          Personally I don’t care who you are, white, black, green, christian, muslim, gay, transvestite… this is irrelevant (and truth be told I don’t even want to know what brand of sexual apparatus you prefer), if you stand for the constitution, limited government, individual rights, equal justice under the law, it all applies to all of us and we all should be fighting for it together.

          As to the general strike you are quite correct. It’s just that I see only a few options for us going down the road and this one, as you note, could be extremely effective. Yea, it’s very difficult to do but we are starting to run short on options and if nothing is done things will eventually turn to violence which would be the worst possible option for everybody.

          I really think some kind of general strike should be what we try and do, specifically to avoid any kind of violent solution. Voting is not going to do it. Trump is not going to do it. Article V is an option but there is a lot of danger going that route also.

          Personally I think the constitution is pretty darn good as it is, and if we could just get the government to start following it things would shape up pretty quick. Yea, a general strike is near impossible to pull off, but as it is, they aren’t listening and they will not listen unless forced to. What other choices are there?

        • I wish I knew what we could do, as it is I see things getting worse before they get better.

          Ideally we’d have a system that punishes government officials personally for violating the bill of rights and/or exceeding their powers…and give everyone access to recourse for it. (No having to get arrested before you can sue to overturn a law.)

          The post I mentioned was the one on Locke. http://www.thetruthaboutguns.com/2016/05/robert-farago/god-locke-philosophy-science-oh-yeah-second-amendment/

          I’m glad you’re not part of this particular problem. Carry on!

  24. Let’s now watch with amusement, the contortions that a liberal/leftist/progressive bureaucracy now goes through in order to not implement the judges ruling.

    They are vile scum.

  25. The problem is that the case will likely go to, I believe, the DC Circuit Court of Appeals, which will likely be heard by a Dem dominated panel, and if not, likely reheard by the court en banc. By then, there should be a 9th Justice on the Supreme Court, and if it is a Hillary appointee (or the Senate Republicans are dumb enough to confirm Obama’s pick), Heller can be neutered by defining increased scrutiny down to not much more than rational basis scrutiny, as has essentially been done in the 2nd and 3rd Circuits.

    What I am talking about is the way that laws are scrutinized for Constitutionality. Most laws are treated to rational basis scrutiny or analysis. The law only really has to have some “rational basis” for enactment. It doesn’t have to be a good reason, or even a reason that the legislature thought up back when it was enacted. It can even be wrong (such as the oft quoted more guns equals more crime mantra). The standard is very differential to the govt, and the burden is mostly on the other parties to disprove rational basis. But “increased scrutiny” is required if a law impacts a “fundamental” right. There, the legal burden of proof is on the state to justify the law. There are essentially two levels of scrutiny under strict scrutiny – intermediate and strict, depending on how fundamental the right is. Traditionally, intermediate scrutiny was only applicable to discrimination based on sex or (legal) alienage. Intermediate scrutiny requires an important state interest, while strict scrutiny requires a compelling state interest. Strict scrutiny also requires that the law be the least restrictive means for achieving the compelling state interest, which means that finding a single less restrictive means defeates the law under strict scrutiny. Intermediate scrutiny is a little more lenient for the govt, but not much.

    The problem here is that the Heller Court found the DC gun law in question violated the 2nd Amdt essentially under intermediate scrutiny, so they didn’t have to decide whether it merited intermediate or strict scrutiny (since if it failed under intermediate scrutiny, it would inevitably fail under the stricter strict scrutiny). So, the Court held that the 2nd Amdt required increased scrutiny, but not whether it required intermediate or strict scrutiny (since it failed under both). Early on, after McDonald (which expanded Heller to the States by fully incorporating the 2nd Amdt via the 14th Amdt), a lot of liberal courts were applying a weak intermediate scrutiny, and the 2nd and 3rd Circuits have adopted such a weak intermediate scrutiny that it verges on rational basis. The other Circuits seem to be coalescing on a sliding scale where strict scrutiny is applied when the issue is close to the core of the 2nd Amdt, and intermediate scrutiny otherwise.

    Often the Supreme Court will wait until an issue has percolated up through the Circuit Courts before entering the fray. We are surely at that point now, with slight variations on two very different approaches having been developed. The issue is clearly ripe now. My worry is that a couple Hillary appointees would adopt the position of the 2nd and 3rd Circuits, instead of the one by most of the other Circuits (including, interestingly, that panel this week of the 9th Circuit, which includes CA). This would greatly weaken the effects of Heller and McDonald.

  26. Gaining yes outsite this lost states but extrem slow and local on state ground not very on federal level.

    Californien
    New York
    Hawai
    Maryland
    Conneticut
    New Jersey
    Rhode Island
    Massachuets

    Washington DC

    And states as colorado, washington, oregon, illinois and delaware is difficult to see if lost ore can turn in right direction …….

    Gaining on federal level is near zero ore is the nfa act repealed ?? the gun free school zone act ?? Post Office carry ?? Carry on United States Army Corps of Engineers Land ?? Force anti gun states to national ccw right in every public place ??

    No on federal level near zero going on it s all local in correct states.

    • Of those states, I think that CO may be the easiest. Those somewhat onerous gun laws were enacted in a short period of time that the Dems controlled both houses of the legislature, as well as the governorship. Two Senators were quickly recalled (including the Senate President), and one resigned, giving the Republicans control of that house, stopping that nonsense. The sheriffs from almost all of the counties in the state (excluding Denver and Boulder, of course) have indicated that their people won’t enforce the new laws.

      I really haven’t seen that much problems with the new laws – I bought a new Gen 4 Glock 17 last year in CO. The computer check went through almost instantly, and the 3 17 round magazines were delivered disassembled (they were, of course, easy to reassemble) to get around the 15 round magazine limit. I do note though that one store I went into, with a large selection of handguns, no longer sells any Glocks that come with 17 round magazines, including Glock 17s. And a lot of web sites and large online retailers now put CO purchases in the category of special scrutiny. Luckily, I have a mailing address in another state, which would nicely get around this problem, if I needed to. At the range where I shot this last winter, you see many more 30 round AR magazines than the lower capacity ones you would expect. The range itself though does seem to conform to the 15 round magazine limit for the guns they rent.

      Still, there is noticeable movement in trying to repeal these laws, in keeping with the history of the state. I am old enough to remember well dressed gentlemen openly wearing revolvers with their suits (boots, and hats) on 16th Street in downtown Denver. That was in the 1950s, long before the city started arresting anyone openly carrying as brandishing their firearms (and limiting concealed carry permits to friends of the mayor and ex-LEOs).

  27. Congress does not have to approve a “ninth” justice. The supreme court has functioned without 9 justices before. If the Hildebeast gets in, Congress can refuse to approve ANY new justice. This could go on in perpetuity, or until a true constitutionalist is nominated…
    Of course, the communist (oops, I mean democrat) party can push for action a nomination, but Congress can ignore their demands…

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