Question about Heller II

[EugeneInNC]

Can the circuit court send the second Heller case back to Judge Urbina to be reconsidered? The reason I ask is that in his opinion the judge said “If the Supreme Court had wanted to declare the Second Amendment a fundamental right, it would have done so explicitly.” In the McDonald opinion the right is referred to as a fundamental right. This would undermine Judge Urbina's reasoning that intermediate scrutiny is the appropriate level of scrutiny for this case.
I just think that if it went back to Urbina he would have to apply strict scrutiny or he would look foolish.

Thanks in advance for any opinions or info. on how this part of the legal system works.

 

[Al Norris]

Eugene, I think first that you should look closely at Urbina's "intermediate" scrutiny. It isn't.

What the D.C. Circuit Court might do is to actually apply the proper scrutiny and strike down the decision (or most of it). Of course, the Circuit just may vacate and remand, but given the bias Urbina has shown, I suspect the former.

At any rate, even if the City appeals the Circuit decision, I feel the SCOTUS will not grant cert. That leaves the Circuit decision as applicable to all federal enclaves, and incidently, citable to all other courts.