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Old February 15, 2014, 07:09 AM   #98
gc70
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Join Date: May 24, 2005
Location: North Carolina
Posts: 2,500
Quote:
Originally Posted by Tom Servo
I still think defining the level of scrutiny is going to be a sticking point. The 9th CA doesn't seem to take issue with the idea of applying intermediate scrutiny; they just think it hasn't been properly invoked:
I don't think the 9CA has any issue with applying intermediate scrutiny, as expressed in O'Scannlain's 2011 opinion in Nordyke:

Quote:
(p5639) Conversely, applying strict scrutiny to every gun-control regulation would be inconsistent with Heller’s reasoning.

(p5640) We are satisfied that a substantial burden framework will prove to be far more judicially manageable than an approach that would reflexively apply strict scrutiny to all gun-control laws.
The Peruta decision is based on the Second Amendment right containing two components: to "keep" and to "bear" arms. With bearing arms defined as occurring outside the home, there is no need to determine a level of scrutiny or a degree of burden because the right is totally banned.

The 2CA approach in Drake starts with the premise that bearing arms is an ancillary function of the Second Amendment that can potentially be denied with appropriate justification.

Quote:
Appellants contend also that “[t]ext, history, tradition and precedent all confirm that [individuals] enjoy a right to publicly carry arms for their defense.” Appellants’ Brief 12 (emphasis added). At this time, we are not inclined to address this contention by engaging in a round of full-blown historical analysis, given other courts’ extensive consideration of the history and tradition of the Second Amendment. ...

For these reasons, we decline to definitively declare that the individual right to bear arms for the purpose of self-defense extends beyond the home, the “core” of the right as identified by Heller. We do, however, recognize that the Second Amendment’s individual right to bear arms may have some application beyond the home. ...

Assuming that the Second Amendment individual right to bear arms does apply beyond the home, we next consider whether or not the requirement that applicants demonstrate a “justifiable need” to publicly carry a handgun for self-defense burdens conduct within the scope of that Second Amendment guarantee.
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