I disagree. I don't recall which circuit was which, but at least two of the three assumed without deciding that the right extended outside the home. (Woolard and Drake) They instead tackled the issue as to what was the permissible scope of restrictions on the right to carry a concealed weapon, i.e., the propriety of "good cause" for issuance of a license. Moore v. Madigan had no such issue, as all concealed carry was banned. Secondarily, each applied some variant of "intermediate scrutiny" (or at least what they called "intermediate scrutiny"), and again Moore had no such issue because Illinois failed to adduce any evidence establishing even a rational basis for its law.
You've made this statement, at least twice now in this thread. Let's set the facts straight, shall we?
The
Kachalsky (CA2) and
Woollard (CA4) courts
assumed that there was a right to carry. But they also
assumed that this right lay outside the core of the right. Based on those
assumptions, only a very weak form of Intermediate Scrutiny was applied. O'Scannlain called it what it actually was; Interest Balancing indistinguishable from Rational Basis. In order to use one of the traditional forms of scrutiny, the courts have to do more than just
assume something is true or false. It must make that determination. These two courts did nothing of the sort.
In
Moore, the question
was not one of concealed carry. The issue at hand was that no carry at all, was allowed. Posner did not mandate what form of carry that Illinois had to allow. Only that they had to allow some form of carry. In order to reach that conclusion, the CA7 found that the core of the right was a right to self defense. Judge Posner then expressed the opinion that the right was almost as acute outside the home as it was inside the home. Since all forms of carry were denied, the plaintiffs had been and were still being injured by being denied their fundamental right. Since IL did not/could not proffer a compelling reason to deny the right, their law was struck down. This was real heightened scrutiny.
Under the
Moore reasoning, the CA2 and CA4 were in error, because they never reached to a determination that the right actually existed. They made an
assumption and proceeded from that point. Posner called out those circuit panels for shoddy work.
At this point, there was a technical split between CA7 and CA2/CA4. The split was not "weak" as you stated earlier.
The
Drake court, in contrast, never even
assumed that a right to carry in public existed. They started and ended with deference to legislative actions. Again, this is Rational Basis Scrutiny, regardless of dressing it in Intermediate clothing.
With the above as a backdrop, we now come to the
Peruta case.
Judge O'Scannlain (CA9) went even further than Judge Posner. After cataloging the cases and distinguishing which cases were helpful and which were not, the Judge went into the historical meaning of the right as viewed and practiced by those at the time of the enactment of the amendment. Judge O'Scannlain, like Judge Posner, concluded that the core right was self defense. Since the only manner in which CA allowed the right was through their CC permitting system, then that part of the system that allowed for "good cause" must also include, as a reason, self defense. Since the policy of San Diego was to not accept self defense as "good cause," that policy was unconstitutional. O'Scannlain went further and declared that this policy was unconstitutional under any form of heightened scrutiny. Therefore no determination of the proper form of scrutiny was ever reached.
Along the way to making this determination, O'Scannlain repudiated his three sister circuits in the shoddy manner in which they arrived at their opinions.
There is now, not just a technical split, but a very deep split between what citizens are allowed, as it regards the exercise of a fundamental right and depends upon which judicial jurisdiction they find themselves living in. This is not a situation in which the Supreme Court can allow to exist for much longer.
Since my thinking, above, has been and is in accord with the thinking of others, who are much more qualified to express such legal opinions than I, I see no reason to change this thinking.
