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Maryland Semi-Auto Ban Remanded to District Court for Strict Scrutiny

Discussion in 'Legal' started by Bartholomew Roberts, Feb 4, 2016.

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  1. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

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    Federal Appeals Court reverses District court on summary judgment, remands for appeal of strict scrutiny:

    "We first consider which of the two relevant standards of
    scrutiny (strict or intermediate scrutiny) should apply.10 The
    strict-scrutiny standard requires the government to prove its
    restriction is “narrowly tailored to achieve a compelling governmental interest.” Abrams v. Johnson, 521 U.S. 74, 82
    (1997); see Citizens United v. Federal Election Comm’n, 558 U.S.
    310, 340 (2010) (explaining strict scrutiny “requires the
    Government to prove that the restriction furthers a compelling
    interest and is narrowly tailored to achieve that interest”
    (internal quotation marks omitted)). To be narrowly tailored,
    the law must employ the least restrictive means to achieve the
    compelling government interest. See United States v. Playboy
    Entertainment Group, Inc., 529 U.S. 803, 813 (2000).
    Conversely, intermediate scrutiny requires the government to
    “demonstrate . . . that there is a reasonable fit between the
    challenged regulation and a substantial government objective.”
    Chester, 628 F.3d at 683. For several reasons, we find that the
    Act’s firearms and magazine bans require strict scrutiny.

    As we have noted on previous occasions, “any law that would
    burden the ‘fundamental,’ core right of self-defense in the home
    by a law-abiding citizen would be subject to strict scrutiny.
    But, as we move outside the home, firearm rights have always
    been more limited.” United States v. Masciandaro, 638 F.3d 458,
    470 (4th Cir. 2011). “[T]his longstanding out-of-the-home/inthe-home
    distinction bears directly on the level of scrutiny
    applicable,” id., with strict scrutiny applying to laws
    restricting the right to self-defense in the home, see Woollard
    v. Gallagher, 712 F.3d 865, 878 (4th Cir. 2013) (observing that
    restrictions on “the right to arm oneself at home” necessitates
    the application of strict scrutiny). Strict scrutiny, then, is
    the appropriate level of scrutiny to apply to the ban of semiautomatic
    rifles and magazines holding more than 10 rounds. See
    Friedman, 784 F.3d at 418 (Manion, J., dissenting); cf. Heller
    II, 670 F.3d at 1284 (Kavanaugh, J., dissenting) (reading Heller
    as departing from traditional scrutiny standards but stating
    that “[e]ven if it were appropriate to apply one of the levels
    of scrutiny after Heller, surely it would be strict scrutiny
    rather than . . . intermediate scrutiny”).

    We recognize that other courts have reached different
    outcomes when assessing similar bans, but we ultimately find
    those decisions unconvincing."
     
  2. 627PCFan

    627PCFan Member

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    Can you explain in laymens terms? It sounds like the government has a substantial burden of proof here as opposed to the plaintiff?
     
  3. Frank Ettin

    Frank Ettin Moderator

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  4. Frank Ettin

    Frank Ettin Moderator

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    We start with understanding that the courts have consistently ruled that constitutionally protected rights are subject to limited regulation.

    So if someone challenges a law on the grounds that it impermissible violates or impairs a constitutionally protected right, it is first of all his burden to show that the law does in fact violate or impair a constitutionally protected right. If he has done that, the burden shifts to the government to try to establish that even though the law violates or impairs a constitutionally protected right, the law is a permissible regulation of that right.

    There are three tests which can be used to decide if a particular regulation of a particular constitutional right is acceptable (see this thread: Spats McGee’s Federal Constitutional Primer):

    There's a lot of discussion in the cases about when a particular level of scrutiny applies, and that is generally a major point of contention in constitutional cases.

    In this particular case, the District Court (the "trial" level court in the federal system) applied intermediate scrutiny to uphold the Maryland laws being challenged. The Fourth Circuit said that was the wrong level of scrutiny and that the laws need to be evaluated under the more difficult (for the government) strict scrutiny test.

    Does that help?
     
  5. dc dalton

    dc dalton Member

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    What this COULD do is cause SCOTUS to have to take up the assault weapon ban issue.

    They rejected the Highland Park suit but now that two different circuit courts have opposing positions (and most certainly Maryland is going to appeal if the district court HAS to come to the decision that the law is unconstitutional) they would then be darn near forced to take up the case.

    This is BIG people, really big and it could lead the way to getting rid of all of these idiots bans.
     
  6. pdsmith505

    pdsmith505 Member

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    This right here is FANTASTIC:

     
  7. pdsmith505

    pdsmith505 Member

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    Reading more about the decision reminded me of an important fact:
    MYD has a Republican Governor who possibly opposes the ban. Is he able to direct the MYD AG regarding how the case is handled? Or is that an independent function of the AG?

    For example, could the Gov. direct the AG to appeal directly to the SCOTUS instead of pursuing an en. banc hearing (which, given the makeup of the 4th Circuit and its rulings in Wollard et. al., would almost guarantee a reversal)? If he could so direct, that would present the SCOTUS with a very clear circuit split on the matter, re. Freedman v. Highland Park, that is being petitioned by the State.
     
  8. shrpshn

    shrpshn Member

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    The MD AG does not answer to the Governor ~ In fact AG Brian Frosh is one of the main architects of the over-bearing gun regs in force now; and is a rabid anti-gun activist.

    He is Democratic - Governor is Republican - no help here.
     
  9. pdsmith505

    pdsmith505 Member

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    That answers that then.

    Seems like we have another Peruta.
     
  10. barnbwt

    barnbwt member

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    And back to the kitchen it goes, to be oven-roasted until "Strict Scrutiny" :D

    Hopefully they won't just spit on it and send it back out to the diners (I recall a recent-ish case where a lower-level court claimed they had applied strict scrutiny, but was ultimately a 'rational basis/because-I-said-so' argument)

    OUCH! Nice contact on that back-hand --ring hand, too :eek:. Glad to hear persons in positions of authority say "how dare you try to shame me that way" for a change, instead of cringing in terror over what their enemies might think.

    TCB
     
  11. Jlr2267

    Jlr2267 Member

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    So what happens if the lower court does just spit on it and send it out? What is the remedy for such a thing?
     
  12. gbran

    gbran Member

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    Greatly. THX.
     
  13. Frank Ettin

    Frank Ettin Moderator

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    Another trip to the Fourth Circuit.
     
  14. Jlr2267

    Jlr2267 Member

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    Is that automatic? I mean, does the 4th circuit review the decision as normal procedure, or would it require another appeal?
     
  15. Frank Ettin

    Frank Ettin Moderator

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    No, it's not automatic. It would require that the aggrieved party appeal. And no matter what the outcome at the District Court, it's very likely that the losing side will file an appeal.
     
  16. Shootshellz

    Shootshellz Member

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    What part of 'shall not be infringed' is difficult to understand? 'Laws repugnant to the Constitution are null and void' - Marbury v Madison. That is all any court in the USA needs to know; all the rest is B.S. to ensure an endless procession of appeals that is 'job security' for lawyers and judges. IMHO this crap has got to stop or another revolution is a certainty.
     
  17. Frank Ettin

    Frank Ettin Moderator

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    Thank you for giving us this peek into your alternate universe. But here we deal with the real world. As I previously pointed out to you here:
     
  18. roscoe

    roscoe Member

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    Yeah - it turns out law, like medicine, science, philosophy, religion, and politics, is complicated.
     
  19. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

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  20. Spats McGee

    Spats McGee Moderator

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    No surprise there.

    I've been waiting for years for an Circuit Court of Appeals to recognize that strict scrutiny is the proper measure.
     
  21. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

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    The next big trick (assuming we pull this one off) will be to get Circuit courts to apply intermediate scrutiny (when using the two-step test that I'm not so sure is a good idea to begin with) as opposed to applying rational basis and calling it intermediate scrutiny.
     
  22. Spats McGee

    Spats McGee Moderator

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    From your lips to God's ears, Bartholomew Roberts . . .

    A Circuit split might get us to SCOTUS and I'd really, REALLY like for SCOTUS to settle the issue of which level of scrutiny (in favor of strict scrutiny, obviously).
     
  23. agtman

    agtman Member

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    Didn't Heller hold that the 2nd Amdt guarantees a fundamental individual right - unconnected to and unqualified by active participation in militia service - "to keep and bear arms"?

    Previous SCOTUS rulings regarding which constitutional rights are considered "fundamental" have cited to those explicitly mentioned in the text of one or more of the various Amdts, like the First, Fourth, Fifth, Fourteenth, etc.

    Much of the debate after that was whether those fundamental rights should then be made binding on state governments by being "incorporated" thru the due-process clause of the 14th Amdt ....

    Those same precedents have also said that when some government action burdens/impedes/violates a "fundamental" right, whatever justification the government offers must pass a "strict scrutiny" review by the courts, not some lesser standard, like intermediate or "rational basis."

    I can't think of any other textually explicit right, previously held by SCOTUS to be "fundamental," for which a government action being challenged as violating it was held subject to one of the weaker standards of review.

    Can you name one? :scrutiny:
     
    Last edited: Feb 5, 2016
  24. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

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    Content-neutral free speech cases are evaluated under an intermediate scrutiny standard - though the standard of "intermediate scrutiny" used in those cases seems substantially tougher than what was applied by the District Court in this case.
     
  25. agtman

    agtman Member

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    I believe the cases you're referring to are the "employment workplace" free-speech cases where the government is the employer.

    If you're talking about the public forum cases, like protest marches in public places, although that form of "exercise" of free speech is subject to reasonable and non-discriminatory "time, place, and manner restrictions," the court's review of whether such restrictions are in fact reasonable, content-neutral, non-discriminatory, etc., is gauged under strict scrutiny.

    In turn, to prevail, the government must demonstrate that it has a particularized "compelling interest" in enforcing that challenged policy, restriction, ordinance, statute, whatever, and that no legislative means less invasive or less burdensome on the right would achieve the same objective.

    It also bears observing that legislative "bans" in the 2nd Amdt context bear a direct relation, legislatively, to "prior restraints" on speech and press in the 1st Amdt context, and such restraints on speech and press have always been subject to the strictest scrutiny.
     
    Last edited: Feb 5, 2016
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