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Old June 13, 2012, 06:49 PM   #43
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Join Date: July 26, 2005
Location: The Bluegrass
Posts: 8,388
Why are they bringing a case regarding an unlicensed firearm into the mix? Kachalsky deals with removing "good cause" and subjective licensing schemes, not the overall RKBA.
If nothing else, the level of scrutiny is an issue. In Decastro the defendant claimed 18 U.S.C. sct. 922(a)(3) (prohibiting anyone except a licensed dealer from importing a firearm into a state from another state) was unconstitutional on its face and, in combination with NYC's restrictive gun permit policy, denied him his right to own a firearm. He bought a gun in Florida by lying about his state of residence and then transported it into his home in NYC.

DeCastro argued on appeal that the court should review section 922(a)(3) using either strict or intermediate scrutiny. The 2nd Circuit said:
We hold that heightened scrutiny is appropriate only as to those regulations that substantially burden the Second Amendment. Because § 922(a)(3) only minimally affects the ability to acquire a firearm, it is not subject to any form of heightened scrutiny. (We therefore need not decide the level of scrutiny applicable to laws that do impose such a burden.)
I'm sure the Court is seeking discussion about whether the city's licensing scheme impairs the the ability to acquire a firearm and how that plays into the level of scrutiny.

Particularly interesting is this:
The district court declined to dismiss the indictment. Inferring from the NYPD statistics that there is a high grant rate for handgun licenses in New York City, the court rejected Decastro's argument that he was effectively forced to violate § 922(a)(3) by traveling outside the state in order to secure a handgun for self-defense. The court did not address Decastro's argument that § 922(a)(3) is unconstitutional on its face.
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