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4th Circuit over rules Maryland assault weapon and magazine ban...finally, good judges...

2aguy

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2aguy

2aguy

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but...what do they mean by "Strict Scrutiny?"

Ruling In "Assault Weapons" Case Could Gut Gun Control Nationwide

friend Andrew Branca explains it much better than I could.

In 2013, Maryland enacted its Firearms Safety Act (FSA). With its passage, effectively banning its residents from owning any of the large majority of semi-automatic rifles owned by American citizens (exceptions were made for retired law enforcement officers). The FSA also imposed other restrictions, such as banning certain standard-capacity magazines.

Such laws are common in blue states, of course, and when challenged in the Federal courts on the grounds that they violate the Second Amendment they are typically subject only to intermediate (or lesser) scrutiny. Generally speaking, if the State can articulate virtually any purportedly reasonable basis for the gun law, it survives scrutiny. Merely uttering the words “public safety” is usually sufficient for this purpose.

Of course, normally laws that arguably infringe an enumerated Constitutional rights are not subject to mere intermediate scrutiny, but rather they are subject to strict scrutiny. To survive strict scrutiny the law must advance not merely any governmental interest, but in particular a compelling governmental interest. It is perhaps arguable that “public safety” would serve to meet this requirement. In addition, however, the law must also be narrowly tailored to actually achieve that interest. It is this second requirement that almost invariably leads to the law in question being found to be unconstitutional.

In a nutshell, then, if intermediate scrutiny is applied to almost any law, the law survives. If strict scrutiny is applied to almost any law, the law falls.
 
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2aguy

2aguy

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Andrew Branca writes about the decision.....he was spot on with the legal opinions during the Zimmerman trial so hopefully he is on target here on this decision...

Big #2A Win - 4th Circuit Applies Strict Scrutiny to Maryland Gun Control Law

Of course, normally laws that arguably infringe an enumerated Constitutional rights are not subject to mere intermediate scrutiny, but rather they are subject to strict scrutiny. To survive strict scrutiny the law must advance not merely any governmental interest, but in particular a compelling governmental interest. It is perhaps arguable that “public safety” would serve to meet this requirement. In addition, however, the law must also be narrowly tailored to actually achieve that interest. It is this second requirement that almost invariably leads to the law in question being found to be unconstitutional.

In a nutshell, then, if intermediate scrutiny is applied to almost any law, the law survives. If strict scrutiny is applied to almost any law, the law falls.


To nobody’s surprise, that’s precisely what happened with the FSA was challenged in Federal court in Kolbe v. Hogan, in which the plaintiff gun owners never even got to argue on the merits. There the federal court granted summary judgment to the state, concluding that under intermediate scrutiny the FSA was not an unconstitutional infringement of the Second Amendment. See Kolbe v. O’Malley, 42 F. Supp. 3d 768 (D. Md. 2014).

It is a true oddity of constitutional law that the rights enumerated in the Constitution are almost invariably privileged to strict scrutiny–except for the rights enumerated in the Second Amendment.

This state of affairs has allowed the implementing of constraints on the Second Amendment right to keep and bear arms that would never have been tolerated in the context of First Amendment rights to freedom of religion, speech, or assembly, or Fourth Amendment rights against governmental search and seizure, Fifth Amendment rights to due process and against self-incrimination and double jeopardy, and so forth.

Indeed, Second Amendment advocates have long noted this disparity of treatment, and have long fought to eradicate it. We know full well that should strict scrutiny be applied to the Second Amendment, the vast majority of gun laws currently on the books would inescapably be found to be unconstitutional infringements of the Second Amendment, and discarded.


In short, the application of strict scrutiny to the Second Amendment, just as it is applied to the other rights enumerated in the Constitution, would be a complete game changer on gun rights on a national scale.
 

TNHarley

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That cry baby started crying on the debate stage because a newtown victims family couldn't sue bushmaster. A fuckin gun manufacturer FFS. Something that corrupt cankles calls "progress" AKA illegitimate accountability..
 

martybegan

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Just a technical quibble, the appeals court didn't overturn the ban, it required the lower district court judge to review the case using strict scrutiny, which should result in the district court overturning the law.
 

C_Clayton_Jones

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The appropriate level of judicial review is only part of the issue.

Just as important, if not more so, is the court's consideration of what constitutes a weapon 'in common use' as opposed to those considered 'dangerous and unusual':

“In sum, semi-automatic rifles and LCMs are commonly used for lawful purposes, and therefore come within the coverage of the Second Amendment.” ibid

Also important is the court's concurrence with the 9th Circuit's holding that ammunition and firearm loading devices are likewise subject to constitutional protections; jurisdictions may not seek to 'ban' ammunition commonly chambered in semi-automatic rifles – such as 5.56mm NATO, 7.62 x 39mm, or 7.62mm NATO – in an effort to hinder, discourage, or otherwise undermine citizens' use of such firearms.

Should the lower court strike down the Maryland statute pursuant to strict scrutiny, and assuming the lower court decision is upheld on appeal by the 4th Circuit, that would create a conflict with the 2nd Circuit's ruling in favor of New York's SAFE Act, likely compelling the Supreme Court to hear the case, just as occurred with Obergefell and state prohibitions of same-sex couples accessing marriage law, whether members of the court want to hear the case or not.
 

M14 Shooter

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The appropriate level of judicial review is only part of the issue.

Just as important, if not more so, is the court's consideration of what constitutes a weapon 'in common use' as opposed to those considered 'dangerous and unusual':

“In sum, semi-automatic rifles and LCMs are commonly used for lawful purposes, and therefore come within the coverage of the Second Amendment.” ibid

Also important is the court's concurrence with the 9th Circuit's holding that ammunition and firearm loading devices are likewise subject to constitutional protections; jurisdictions may not seek to 'ban' ammunition commonly chambered in semi-automatic rifles – such as 5.56mm NATO, 7.62 x 39mm, or 7.62mm NATO – in an effort to hinder, discourage, or otherwise undermine citizens' use of such firearms.

Should the lower court strike down the Maryland statute pursuant to strict scrutiny, and assuming the lower court decision is upheld on appeal by the 4th Circuit, that would create a conflict with the 2nd Circuit's ruling in favor of New York's SAFE Act, likely compelling the Supreme Court to hear the case, just as occurred with Obergefell and state prohibitions of same-sex couples accessing marriage law, whether members of the court want to hear the case or not.
Thank you, captain obvious.
 

AmericanFirst1

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The appropriate level of judicial review is only part of the issue.

Just as important, if not more so, is the court's consideration of what constitutes a weapon 'in common use' as opposed to those considered 'dangerous and unusual':

“In sum, semi-automatic rifles and LCMs are commonly used for lawful purposes, and therefore come within the coverage of the Second Amendment.” ibid

Also important is the court's concurrence with the 9th Circuit's holding that ammunition and firearm loading devices are likewise subject to constitutional protections; jurisdictions may not seek to 'ban' ammunition commonly chambered in semi-automatic rifles – such as 5.56mm NATO, 7.62 x 39mm, or 7.62mm NATO – in an effort to hinder, discourage, or otherwise undermine citizens' use of such firearms.

Should the lower court strike down the Maryland statute pursuant to strict scrutiny, and assuming the lower court decision is upheld on appeal by the 4th Circuit, that would create a conflict with the 2nd Circuit's ruling in favor of New York's SAFE Act, likely compelling the Supreme Court to hear the case, just as occurred with Obergefell and state prohibitions of same-sex couples accessing marriage law, whether members of the court want to hear the case or not.
Thank you, captain obvious.
Clayton is trying to keep his position of jailhouse lawyer.
 

Bob Blaylock

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The appropriate level of judicial review is only part of the issue.

Just as important, if not more so, is the court's consideration of what constitutes a weapon 'in common use' as opposed to those considered 'dangerous and unusual':

It occurs to me that this criterion is inherently flawed, subject to circular logic.

A particular arm may not be “in common use” simply because it has long been subject to strict legal restrictions. Short-barreled shotguns come immediately to mind, as an example. A short-barreled shotgun clearly has legitimate applications, but they are restricted by the National Firearms Act of 1934, subject to exact the same restriction as machine guns and “destructive devices” such as hand grenades. Short-barreled shotguns are only not “on common use” specifically because of their legal status under the NFA; otherwise, I expect that they'd probably be a very popular and common arm for home defense.
 

RetiredGySgt

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Actually short barreled shotguns are a danger to use as they spray the shot all over the place with little to no control. They are NOT effective defense weapons for a home.
 

JimBowie1958

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Actually short barreled shotguns are a danger to use as they spray the shot all over the place with little to no control. They are NOT effective defense weapons for a home.
They are only good for sweeping trenches and bushwacking unsuspecting targets like a coward would do.
 

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