The Coming Second Amendment Court Fights

The Coming Second Amendment Court Fights

The ink was barely dry on the U.S. Supreme Court’s 2008 District of Columbia v. Heller decision before lower courts began deliberately and systematically undercutting it. Judicial defiance has ranged from misreading the scope of the right enunciated by Heller to undermining decades of fundamental-right jurisprudence. For over a decade, attorneys sought only a fair-import application of Heller’s history-based analysis, but, with rare exceptions, instead faced massive resistance from judges who disfavor the Second Amendment. A few cases illustrate the extent of this judicial activism. In upholding New Jersey’s very restrictive may-issue concealed-carry licensing regime in 2013, the Third Circuit Court of Appeals held that public carry was not protected by the Second Amendment because New Jersey’s “justifiable need” requirement for concealed-carry permits was a “longstanding” regulation and thus presumptively lawful under Heller . But the regulation was not enacted until 1924, and the court ignored that New Jersey allowed open carry until 1966. The court then performed an alternative analysis under what it termed “intermediate scrutiny”—theoretically a heightened level of judicial review for constitutional rights. Under that test, the state bears the burden of showing that, to quote the Third Circuit, a given regulation does “not burden more [conduct] than is reasonably necessary” in attempting to achieve its stated end. Yet the court relied entirely on the “predictive judgment of NJ’s legislators” that limiting issuance of carry permits would enhance public safety. The judgment that more lenient carry laws led to more crime was based, to quote the […]

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