Tomorrow, 07-21-2011, the Court will hold an oral hearing on cross motions for Summary Judgment. Alan Gura filed a notice of Supplemental Authority (citing Ezell
), while the Court sent a memo on the hearing. The Docket is here
Document #41, Notice of Supplemental Authority
, is pretty much word for word with the one Alan Gura filed in Lane v. Holder.
Document #42, the Memo
, is going to be the key to losing this case at the District level, as it signals the Judges predisposition:
From my reading of the briefs and the relevant case law, it appears that the following points are not in serious dispute:
- The “core” of the Second Amendment protection as articulated in Heller and McDonald encompasses the right of law-abiding individuals to possess handguns in the home for self-defense.
- When considering legislation regulating conduct outside this core area, but still within the scope of the Second Amendment right, intermediate scrutiny is appropriate.
- This case does not implicate any of the “presumptively lawful regulatory measures,” such as prohibitions on firearms ownership by convicted felons or the mentally ill, laws forbidding the carrying of firearms in sensitive places, or laws imposing conditions and qualifications on the commercial sale of arms.
- The Court should consider the regulatory scheme as a whole rather than analyzing only the challenged portions of the law.
The key questions on which this case will turn, therefore, are the following:
- Do the regulations here at issue satisfy intermediate scrutiny?
- What is the nature and extent of the state’s interest in the regulations?
- How are these regulations tailored to advance the state’s interest?
- If the challenged regulations would not satisfy intermediate scrutiny, does the Second Amendment right extend outside the home at all? The majority in Masciandaro expressly reserved this question, and suggested that it should not be decided unless absolutely necessary.
Additional questions that will inform the above:
- To what extent is First Amendment doctrine properly applied in the Second Amendment context? Is it merely instructive in determining the level of scrutiny applicable to the circumstances, or do concepts such as prior restraint and overbreadth apply as well?
- What is the appropriate role of social science data in determining whether the state’s carry law passes constitutional muster?
Note well, the very first criteria of discussion. "In the Home," has raised its ugly head, once again.