Well this is interesting.....and timely considering the direction this thread took away from the tissue box towards some absolutely brain-dead blather about "strict scrutiny" applying to the 2nd Amendment.....
Yesterday, February 4th, 2016, the first American federal appeals court in the history of history ruled that the 2nd Amendment falls under the strict scrutiny doctrine. Even much of the commentary generated by the ruling is more about it being the first time strict scrutiny has ever applied to the 2A than they are commenting on the rather significant overturning of Maryland's Firearms Safety Act of 2013. If the 3-judge ruling survives a likely en banc (full court review), and if the Supremes take this case when the State of MD appeals the Fourth Circuit ruling, it will be the very first time that the Supremes will be forced to answer the question of why the 2A is the only enumerated right to be denied a strict scrutiny method of ruling up to that point by
federal courts since the beginning of jurisprudence in the United States. If the 4th C. ruling stands against MD's FSA, it will be the most significant 2A case to ever get anywhere near the Supreme Court. Knowing some of the traitors on the High Court, there are certainly no guarantees, but the 4th C. just took a bold and giant leap backwards towards full restoration of meaning and status as-understood by the Patriots who passed and adopted the Second Amendment on December 15, 1791.
The following is the first place I looked after hearing about the ruling. I'm sure there are other sites with varying analysis of what the potential is for this to be a hugely big deal, but this one seems to get it, so here ya go:
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.
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.
Today, the United States Court of Appeals for 4th Circuit did exactly that, applying strict scrutiny to Maryland’s “Firearms Safety Act,” in a two-to-one decision that could change the face of gun laws for Maryland (arguably one of the most anti-gun states in the nation), and perhaps portend similar relief for the beleaguered residents of New York, New Jersey, California, and the few other remaining anti-gun states. This decision is embedded at the bottom of this post.
In brief, the court’s 2-to-1 majority concluded first that the guns and magazines banned by the FSA fall within the scope of the Second Amendment, and second that:
