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Old September 30, 2011, 09:35 PM   #48
Al Norris
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,524
This thread is slightly over a year old and we have the results of one case in.

Yesterday, in Jennings (was D'Cruz) v. BATF&E, Judge Samuel Cummings denied Jennings MSJ and the .Gov MTD but granted the .Gov MSJ. You can read it here.

On the second amendment question, Judge Cummings quoted and highlighted this passage from Heller:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
He then concludes with this:

Considering Heller’s specific exception of conditions and qualifications on the commercial sale of arms from the individual right to keep and bear arms, along with the Fifth Circuit’s treatment of the distinction between possession and dealing of firearms and its exempting young persons from Second Amendment guarantees, the Court is of the opinion that the ban does not run afoul of the Second Amendment to the Constitution. ...

... In essence, it is within the purview of Congress, not the courts, to weigh the relative policy considerations and to make decisions as to the age of the customer to whom those licensed by the federal government may sell handguns and handgun ammunition.
So if the Congress decides that you are too young until you reach the age of, say, 50? then it is quite alright to deny a basic fundamental right. Until you reach that age.

Of course in saying this, Judge Cummings completely ignores Ezell. If in Ezell, the 7th Circuit held that training at a firing range was a corollary right and a ban of firing ranges thus merited "almost strict" scrutiny, then the ability to purchase a handgun for self defense ("in the home"), is also a corollary right and a ban on the purchase of the tool that makes self defense possible, also merits the same scrutiny.

The above logic is inescapable.

This is a case of first impression and Judge Cummings has just signaled that he is too afraid to touch it. Despite having a wide latitude to do just that. So he falls back to the 2A Two-Step.

As for the Equal Protection claim, Judge Cummings dismisses it with rational basis scrutiny (at least he is honest enough to directly say this), because the 2A claim has no merit.
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