[Frank Ettin]

Originally Posted by DG45

So, after the McDonald decision, is it going to be legal now to carry a gun through California? If not, and if I carry one anyway and am arrested, would I now have a shot at winning a lawsuit against California on Constitutional grounds? ...Seriously, This is a question - I'm not a lawyer and don't know, but it seems to me like I would have grounds for a lawsuit, since the Supreme Court now apparently agrees that the 2nd Amendment applies to the states,...

Short answer is "no, it is not legal for you to carry a gun in California, and you will not have a shot at winning a lawsuit." If, at this point, you were to be arrested in California on a gun charge, you might have the opportunity to be a test case and defend the criminal charge against you by challenging the constitutionality of the law you were charged under.

So you might have an opportunity to help change California law, and that would be a very nice thing. Thank you. But that would also be an opportunity to spend from $0.5 Million to $1 Million on legal expenses to take the case up through an appeal to the 9th Circuit, or a bunch more to go up to the Supreme Court.

But assuming that you won after several years of litigating your criminal case, you probably wouldn't have a good civil suit against the State. Your arrest was presumptively lawful under a law that was presumptively valid at the time.

Here's how things work:

Courts decide cases. Their decisions in any particular case (like McDonald) are binding only on the parties. But the rulings on matters of law made by a court of appeal in the process of deciding a case become themselves precedent that will be used by other courts to decide other cases, when applicable.

Now in the course of deciding the Heller and McDonald, the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts.

Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.

It has long been settled law that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, we have some reason to hope that the highest level of scrutiny, "strict scrutiny" will apply. Strict scrutiny has thus far been the standard applied to any regulation of a fundamental right enumerated in the Bill of Rights.

The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.

Whichever level of scrutiny may apply, government will at least be able to make its pitch that the regulation challenged satisfies the test. Some will, and some will not. I suspect that now the strategy will be to go after the ones most likely to fall, so as to continue to build a body of pro-RKBA precedent.

So as of this minute, all gun laws remain in force. They are subject to challenge in court. If and when challenged in court, the courts will have to decide those cases using the rulings of the Supreme Court in Heller and McDonald.