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Old April 3, 2013, 03:00 PM   #58
KyJim
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Join Date: July 26, 2005
Location: The Bluegrass
Posts: 9,137
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But wait, I thought there was no right to carry a concealed weapon per Heller.
The court here did not rely upon the Second Amendment. In fact, it cited the 10th Circuit Peterson case and held:
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Pursuant to Peterson, the Second Amendment does not confer a right to carry concealed weapons. Accordingly, Plaintiffs have failed to demonstrate a substantial likelihood of success on the merits of their Second Amendment claim.
Opinion at p. 13.

The court based its ruling on the Equal Protection Clause of the 14th Amendment. It applied strict scrutiny:
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Although New Mexico’s Concealed Handgun Carry Act does not burden a fundamental right, it nonetheless may be subject to strict scrutiny if it targets a suspect class. . . . Alienage is a suspect classification and state statutes that discriminate on the basis of alienage are subject to strict scrutiny. . . . New Mexico’s Concealed Handgun Carry Act discriminates on the basis of alienage and, therefore, strict scrutiny is the applicable standard.
Opinion at p. 14 (citations omitted).

The court relied on the Kachalsky opinion from the 2nd Circuit and held that their was a compelling state in protecting “the public from concealed carry of firearms because of the inherent danger that unregulated concealed weapons pose to the public.” Opinion at 17. It concluded, however, that the legislation was not narrowly tailored to serve that interest:
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Defendant Hubbard has failed to demonstrate a close fit between the means chosen and the state’s compelling interest. There is no argument made, much less any evidence proffered, that a permanent resident alien, such as Mr. Jackson, who resides in this country legally, poses a greater danger by virtue of his or her status alone, when carrying a concealed loaded firearm, than do United States citizens"
Opinion at p. 18.

That was the heart of the decision and again illustrates why the standard of review is so darned important.
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