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Old November 20, 2009, 08:23 AM   #11
Bartholomew Roberts
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Join Date: June 12, 2000
Location: Texas and Oklahoma area
Posts: 5,640
Well, definitely a lot of food for thought in that opinion. On the negative side, I see the implication that an exercise of the Second Amendment right that falls outside the scope of how the Founders envisioned it is still a rational basis test - that leaves a great deal of room to debate what is "inside the boundaries" so to speak.

Once inside the boundaries, we have this weird sliding scale of scrutiny that increases as we approach the "core right" discussed by Heller.

Overall, I think the opinion is a plus and well reasoned. Heller was purposefully vague on a lot of issues and the court here made an effort to fairly discern what guidance might be taken from it. They also treated the Second Amendment right as a serious, fundamental, civil right - which I like.

Even after Heller, a lot of courts have relied on the dicta about firearms restrictions against felons being presumptively lawful and made no attempt at all to do the difficult analysis that this court did. The Seventh really slammed the government for their lackadaisical approach to the case. I particularly like how the Seventh noted the government's claim that it was "presuming the highest standard of scrutiny applied" in its prosecution and then proceeded to point out exactly what that level of scrutiny meant and how far the government had fallen short of meeting that burden. As rebukes go, they nailed everyone in the lower court proceedings pretty well.
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