It took nearly two years but this morning the 9th Circuit Court of Appeals issued a decision written by ninety year old judge Harry Pregerson which created a framework in the 9th Circuit for deciding Second Amendment cases.
The court of appeals adopted a “Two Step Inquiry” (1) If the challenged law burdens conduct protected by the Second Amendment then (2) courts are directed to apply an appropriate level of scrutiny.
This is an important decision because when the US Supreme Court decided District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010) the cases involved bans. The High Court did not describe a framework for the courts to use to evaluate laws that fell short of outright bans as was the case in Heller and McDonald.
Until today, the cases decided in the 9th Circuit did not articulate a framework because they either involved persons the court said fall outside the scope of the Second Amendment (e.g., convicted felons) or “arms” which the court likewise said fall outside the scope of the Second Amendment (e.g., bombs) or persons using firearms to further their criminal enterprise (e.g, drug dealers), etc. In cases such as this, the court decided that it was not necessary to articulate a framework to use in deciding the cases. In other words, these were “Open and Shut” cases.
No comments:
Post a Comment