The Second Amendment Two-Step, as a legal defense against the carry outside of the home question
A week ago (maybe 2), Patrick, over at MDShooters.com, first gave voice to the type of defense we are seeing our opponents use.
The Defense argument: 1a) The bearing of arms outside of the home is not the core of the Heller holding. 1b) Since the bearing of arms outside of the home is not core, a lessor scrutiny then applies.
2) The defense crafts a standard of evaluation that it claims to be intermediate (or some other heightened) scrutiny, but is in reality a reasonableness test, aka rational basis.
2) The defense crafts a standard of evaluation that it claims to be intermediate (or some other heightened) scrutiny, but is in reality a reasonableness test, aka rational basis.
This is what appears to be working within the various District Courts at the moment. Heller took rational basis testing off the table, when reviewing 2A questions. It seems that the current method of calling this type of scrutiny anything but rational basis, is working within this lower level of the Courts.
It also appears that the lower courts really do not want to grapple with these cases (they don't want to set precedent. They would prefer the status quo), so they make rulings guaranteed to move to the Circuit Courts where the big boys can make the tough decisions.
Just as our side is attempting to develop that "bear" means to carry in places other than the home, our opposition is attempting to circumvent the Heller reasoning that rational basis scrutiny is off the table. At best, this is a pattern being developed, in the hopes that the higher Courts (the Circuit Courts) will adopt wholesale. This, despite the signals from the 7th Circuit, the 3rd Circuit and especially the 4th Circuit (Chester) that it won't fly.
What we are now seeing is this 2A two-step, in action. The recent decision in Georgia Carry.org v. Georgia is the best example I can give.
In this case, A Minister challenged the Georgia law that bans carry within Churches. "A person shall be guilty of carrying a weapon or long gun in an unauthorized location and punished as for a misdemeanor when he or she carries a weapon or long gun while: In a place of worship;" (See OCGA § 16-11-127(b)(4)). OCGA § 16-11-127.1 is the list of exceptions of who can carry in these banned areas (government officers, natch). The challenge asserted both 2A and 1A (Free Exercise Clause) grounds.
The Judge in this case, accepted as a rationale, the States means-end test of public safety, called it intermediate scrutiny, and said that the burden of surrendering your right to self-defense, while worshiping, was too slight to be unconstitutional. Interfering with the Free Exercise Clause was likewise inconsequential, as regards the States
That, dear reader, is the 2A Two-Step in action.
I agree with Patrick, that this is a stalling maneuver, at best. The first Circuit Court to strike this down, will cause this whole house of cards to come tumbling down. Everywhere.
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