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Out of curiosity, why can Clement get away with it?
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Paul Clement is perhaps the most respected lawyer to appear in front of the current court.
Here's the brief.
http://sblog.s3.amazonaws.com/wp-con...ion-13-137.pdf
Clement writes very powerfully not only for the instant case but against the short-shrift the second amendment is receiving almost universally in the lower courts. The brief points out numerous examples of the '2A two step', and repeatedly notices the court that the reasoning in Heller and McDonald are not being taken seriously.
There are abundant, stinging 'gems' contained within, too many to mention, in fact. Here's one:
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Unsurprisingly, the panel identified not a single founding-era law suggesting otherwise. Instead, the panel deemed it sufficient that, “[i]n the view of at least some members of the founding generation, disarming select groups for the sake of public safety was compatible with the right to arms specifically and with the idea of liberty generally.” App. 30–31. The “select groups” it identified include not 18-to-20- year-olds, but rather “law-abiding slaves,” “free blacks,” and “persons who refused to swear an oath of allegiance to the state or to the nation.” . . .
. . . When the best that can be said in defense of a law that abridges a fundamental right is that it is “compatible with” the invidious racial discrimination that our Nation fought a civil war and amended the Constitution to rectify, it should be obvious that something has gone seriously wrong.
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