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Old February 14, 2013, 11:43 AM   #70
esqappellate
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Join Date: October 16, 2012
Posts: 69
I don't think Aldisert is stupid by any means. Of course, that doesn't mean that he's a genius either. He enjoys enormous respect due to his seniority, but I did not see any hint that either Stark or Hardiman will defer to him. Hardiman agreed with Aldisert that the NJ standard was a "standard" that did not embody unlimited discretion. His point to Gura was that Gura should be arguing that the standard was too strict to permit a meaningful exercise of the right that he was more than willing to assume existed outside the home. Hardiman and Stark both were skeptical that the state had carried its burden of showing that the standard promoted the state's public safety concern over accidents and misuse other than by limiting the number of handguns on the street, viz., limiting the exercise of the right. I can see a remand, ala Heller II, for a hearing on whether the state can carry its burden. If they are bold, they could do just as Posner did, and refuse such a remand.
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