View Single Post
Old May 24, 2011, 10:49 PM   #20
Al Norris
Staff
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,322
The appeal was filed on Monday, the 23rd of May. The link to the filing is in this post, in the Current 2A Cases thread.

While the file is 2.1MB in size and comprises 143 PDF pages, the actual brief is only 64 pages. Still, a daunting read to those not used to such things. The best way to sum it up is this:

The attack against the County of San Diego and the District Court start very early in the arguments.

Quote:
Originally Posted by Part I
The foundational error underlying the district court’s decision to grant County’s summary judgment motion was its failure to find the Second Amendment protects, generally, a right to bear loaded firearms for self-defense. This is evident from the way the court framed the question presented:
Quote:
Originally Posted by Part I.A
The district court followed the “minimalist view” of Heller. Generally speaking, the minimalist view entails narrowly reading the holding and findings that support it, while broadly reading dicta regarding “presumptively lawful” restrictions on the right to arms in an effort to (1) keep the right to arms home-bound, or (2) at least keep “core conduct” protected by the right home-bound, and thereby (3) lower the level of scrutiny applied to regulations of the right outside the home.
Quote:
Originally Posted by Part II.A.1
In Heller, the Court engaged in a seven-page, in-depth analysis of the meaning of “bear” when used with “arms.” See Heller, 554 U.S. at 584-91. At the end of its analysis, the Court concluded that, “[p]utting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.” Id. at 592. Nowhere in that extensive analysis did the Court consider bearing unloaded arms. Heller viewed the right to “bear arms” as being the right to carry them for the specific purpose of being “armed and ready” for “defensive action in a case of conflict with another person.” Id. at 584, citing Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)).

In short, the notion that the right to bear arms extends only to unloaded arms was so foreign that it was not considered by the Court.
Quote:
Originally Posted by Part II.A.3
In sum, based on the analytical approach applied in Heller, the court may not hold that the right to bear arms operable for self-defense use, i.e., loaded arms, is not protected – even “core” – conduct under the Second Amendment without some historical inquiry into the Framer’s intent similar to the Court’s inquiry in Heller. Nor may the court rely on an unloaded, open carry scheme to fill the void created by banning both open and concealed loaded carry; not without first providing some evidence that it actually does fill the void (or, more appropriately, placing the burden on County to do so).
Chuck Michel goes into a quite lengthy treatise on why UOC (Unloaded Open Carry) not only "unduly burdens" the right (Planned Parenthood v Casey) but is a "substantial burden" (Nordyke) that in practice, defeats the right of self-defense entirely.

He attacks not only the County, but the Court for not holding the County to the standards of (claimed) intermediate scrutiny, but also the Court itself for its many errors. Most of which are in the category of believing the County without the County providing any facts to refute the plaintiffs allegations.

Chuck Michel holds the District Judges feet to the fire. He also makes quite a bit of hay with the Nordyke panels decision, which I'm sure the panel didn't intend.

All in all, quite a good read. Now we will see what the 9th does.
Al Norris is offline  
 
Page generated in 0.05018 seconds with 7 queries