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Old March 21, 2011, 01:52 AM   #137
Gray Peterson
Join Date: May 18, 2004
Posts: 18
On 03-08-2011, in Peterson v. LaCabe, Plaintiff's #17 Motion for Summary Judgment against Defendant LaCabe is denied. Intervenor Attorney General's #34 Cross-Motion for Summary Judgment is granted. The claims against all parties are dismissed with prejudice. Judgment shall be entered in favor of Defendants and Intervenor and against Plaintiff on all of his claims.

Note how the Judge defines the 2A right to bear arms:
As discussed further below, while the Supreme Court has recently made clear that the Second Amendment strongly protects an individual’s right to have a firearm in the home for the purpose of self-defense, the right may nonetheless be restricted to certain persons and is entitled to less protection outside the home. District of Columbia v. Heller, 554 U.S. 570, 628 (2008).
What we see is once again a Judicial misinterpretation of what Heller actually said: The right only pertains to the home; A broad reading of prohibited persons.

This is nothing new.

It is interesting because the Judge earlier, in his opinion, states that in order for a P&I claim to proceed, a plaintiff must show that the right must 1) “bear upon the vitality of the Nation as a single entity” and be 2) “sufficiently basic to the livelihood of the Nation.” Supreme Court v. Friedman, 487 U.S. 59, 64 (1988).
If the right is protected, the regulation may nonetheless be constitutional if the state can show “substantial reason” for the discrimination against non-citizens, i.e., “something to indicate that non-citizens constitute a peculiar source of evil at which the statute is aimed.” Hicklin v. Orbeck, 437 U.S. 518, 526 (1978) (quoting Toomer, 334 U.S. at 398).
So the court is saying that Intermediate scrutiny must apply.

Then the Judge applies the second aspect of P&I (above), while refusing to even acknowledge the first aspect. sigh.

The Judge then agrees with the State of Colorado, in that the State cannot adequately review the plaintiffs out of state records (of criminal behavior), that the States over riding issue of public safety comes into play and therefore does not implicate the plaintiffs right to travel under the Privileges and Immunities Clause.

The Judge has just applied Rational Basis scrutiny, to something that he just said Intermediate scrutiny applies (the 2A 2-Step: The 2A's Bear to only apply in the home and public carry is outside of the main second amendment protections).

Patrick, from MDShooters puts it better than I can:
The "2A Two-Step" is essentially this:
1. Find that the complaint (public carry, whatever) implicates the Second Amendment, but that it is not "core" to the right

2. Use that non-core finding to assign intermediate scrutiny, that in all effect is really rational basis - which allows the legislature to literally do anything they want.
That's how we are losing these cases. It's almost universally applied.
The Judges opinion is 18 pages. He takes 12 pages to dispose of the Right to Travel. In the remaining 6 pages, the Judges uses the same logic to dispose of the 2A claim (4 pages) the the Equal Protection claim (the remaining 2 pages).

The trend is pretty clear. The lower courts, by and large, are using decisions in criminal cases to equate law-abiding citizens (and their civil rights) as being inherently dangerous. Therefore the ability of a State to regulate public safety must stand above this criminal aspect. They are intentionally misreading Heller by holding that "bear" only applies to inside the home, and that the four cases that Heller used to approve of CC restrictions applies, all the while ignoring that open carry was available, and that this was the point that made the restrictions valid.

Whatever we think of the Brady's, this is directly out of their playbook.
On 03-15-2011, in Peterson v. LaCabe, the final judgment was entered. #46 on the docket. Appeal to the 10th Circuit is next. This is the second case to reach this point. Peruta was first (9th Circuit), but does not contain the issues presented by Peterson.
Yep, this is definitely a 2A Two-Step situation (Yes, I am the plaintiff in this particular case).

Peruta brought up similar issues in a sense, but the situation between the two cases are a bit different. There is no UOC option in Denver.
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