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Old July 6, 2011, 08:48 PM   #65
Al Norris
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,322
In case anyone missed the split circuit decision, I will reprint it in whole, from page 37:

The approach outlined here does not undermine Skoien, 614 F.3d at 639‐43, or United States v. Williams, 616 F.3d 685, 691‐93 (7th Cir. 2010), both of which touched on the historical “scope” question before applying a form of intermediate scrutiny. And this general framework has been followed by the Third, Fourth, and Tenth Circuits in other Second Amendment cases.(see footnote 12)

Footnote 12: The Ninth Circuit recently adopted a somewhat different framework for Second Amendment claims. In Nordyke v. King, a divided panel announced a gatekeeping “substantial burden” test before the court will apply heightened scrutiny. No. 07‐15763, 2011 WL 1632063, at *4‐6 (9th Cir. May 2, 2011) (O’Scannlain, J.). Under this approach only laws that substantially burden Second Amendment rights will get some form of heightened judicial review. Id. The Nordyke majority specifically deferred judgment on “what type of heightened scrutiny applies to laws that substantially burden Second Amendment rights.” Id. at *6 n.9. Judge Gould, concurring in Nordyke, would apply heightened scrutiny “only [to] arms regulations falling within the core purposes of the Second Amendment, that is, regulations aimed at restricting defense of the home, resistance of tyrannous government, and protection of country.” Id. at *15. All other firearms laws, he said, should be reviewed for reasonableness, id., although by this he meant the sort of reasonableness review that applies in the First Amendment context, not the deferential rational‐basis review that applies to all laws, id. at *16.
So we have a circuit split. Should the Nordyke case fail at rehearing or en banc, they can go to SCOTUS, which will settle the issue. Patrick, over at MDShooters says it best, here:

Both Nordyke and Ezell put forth frameworks to evaluate claims, in general. They outlined the path to make a decision on any 2A topic, not just those before the court. This results in confusion on all topics, not the least of which being public carry.

The Ninth laid out a path that makes clear they will probably view RKBA though the lens of a "burden" imposed by the government. Sounds nice until you realize their view of burden is not ours. They gave exceptional latitude to elected bodies to decide just what that burden entails, and also said that public safety arguments are too complex for the courts to analyze - so they just defer to the reasonable legislature instead.

The Seventh used an originalist approach to say that the first step in evaluating any proposed right would be to evaluate whether the exercise of that activity was understood to be core to the second amendment back when the 14th Amendment was passed. If the answer to that questions is affirmative, then you move on to the claims the government has in regulating that activity. The government must prove those claims valid, and not just for theoretical pubic safety reasons. There has to be damn good reasons to restrict the right.

Each of those frameworks were designed to apply to more than the instant cases. Each issues instructions for all courts in their circuit to follow when evaluating any 2A claim. Each of those frameworks is incompatible with the other, and that means the people of the Ninth will get a different version of the right than the people of the Seventh. That calls for Supreme Court intervention.
Originally Posted by Tom Servo
Do we have our first rumblings of a strict scrutiny doctrine?
I'm not sure if you realize it or not, but this decision was strict scrutiny in all but name. Does that answer your question?

As for the new ordinance, it fails the operation of the preliminary injunction that the District Court will have to issue:

They are entitled to a preliminary injunction to that effect. To be effective, however, the injunction must also prevent the City from enforc‐ ing other provisions of the Ordinance that operate indirectly to prohibit range training. The plaintiffs have identified several provisions of the Ordinance that implicate activities integral to range training: CHI. MUN. CODE §§ 8‐20‐020 (prohibiting the possession of handguns outside the home), 8‐20‐030 (prohibiting the possession of long guns outside the home or business), 8‐20‐080 (prohibiting the possession of ammunition without a corresponding permit and registration certificate), 8‐20‐100 (prohibiting the transfer of firearms and ammunition except through inheritance), 8‐24‐010 (prohibiting the discharge of firearms except for self‐defense, defense of another, or hunting). To the extent that these provisions prohibit law‐abiding, responsible citizens from using a firing range in the city, the preliminary injunction should include them as well. Similarly, the injunction should prohibit the City from using its zoning code to exclude firing ranges from locating anywhere in the city.

Finally, because range training is required for the issuance of a Chicago Firearm Permit, a registration certificate, and ultimately, for lawful possession of any firearm, see CHI. MUN. CODE §§ 8‐20‐110(a), 8‐20‐140(a)‐(b), the firing‐range ban implicates not only the right to train at a range but also the core Second Amendment right to possess firearms for self‐defense. Accordingly, the preliminary injunction should include sections 8‐20‐110(a) and 8‐20‐140(a) to the extent that those provisions operate to prohibit otherwise eligible persons from “carry[ing] or possess[ing] a firearm” at a range without a Permit or registration certificate while they are trying to complete the range‐training prerequisite for lawful firearm possession.
Read that highlighted section again. The new ordinance is dead before it can start.
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