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But now with this ruling together with an number of others like Judge Posner's opinion in Moore we're developing a strong pro-Second Amendment judicial literature.
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It still amazes me. It wasn't too long ago that
Emerson was the only real arrow in the quiver for us.
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The disconnect with those judges isn't that they don't know what strict scrutiny or intermediate scrutiny is, or what Jensen referred to as "near strict" scrutiny. Those judges are deciding cases on a rational basis and declaring that it passes muster for scrutiny.
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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:
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This is not an appropriate application of intermediate scrutiny in at least two respects. First, the analysis in the Second, Third, and Fourth Circuit decisions is near-identical to the freestanding “interest-balancing inquiry” that Justice Breyer proposed—and that the majority explicitly rejected—in Heller. (...) Our second disagreement with our sister circuits’ application of intermediate scrutinyrelates to the high degree of deference they afforded the state legislatures ’assessments of the fit between the challenged regulations and the asserted government interest they served.
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