Patrick MSI Executive Member

Join Date: Apr 2009 Location: Calvert County Posts: 7,678

Good but Failing



Their primary evidence here is that the Heller Court had "ample opportunity" to say such a right existed, but chose not to. Quite the contrary -- Scalia went "out of his way" to "highlight" that many existing gun laws are "presumed valid". They also note that the Heller Court specifically cited laws against concealed carry as presumptively legal. Brady argues that the contention such restrictions are only legal in the face of an open carry allowance as being bunk. They say if this were the case, the Heller Court would have balanced the over-the-top assurances of presumptive legality of CCW restrictions with an Open Carry discussion. Good point.



But they of course cherry-picked the Heller and McDonald decisions. As a matter of fact, they then expound on a long discourse on the evils of guns, the inherent danger associated in them, and how this calls for an "interest balancing approach" to be used just for 2A. So right as they started to get some intellectual traction, they completely fall off the wagon and jump right into old pattern. Old losing patterns.



How Brady Derailed



Never mentioned is the fact that both Heller and McDonald specifically dismissed that approach. Brady spends much time separating 2A from 1A - creating a unique standard to review 2A restrictions. This new standard is called "Reasonable Regulation" and sits between rational basis and Intermediate. In other words - Rational Basis with a new name.



They are re-arguing Heller while claiming to hold it as evidence of their argument. Their argument is predicated on two points:



- Heller does not protect carrying of arms outside the home



- Even if it does, "reasonable regulation" means we can legislate the right away if we choose because 2A requires a unique "interest balancing approach" compared to other rights.



The argument that Heller did not protect public carry is their strongest argument. So strong that this is the primary topic of contention in many cases nationwide. It is the core question of our own MD case. Brady is reading tea leaves, but to some extent we all are. Who says our tea is stronger than theirs? I am ignoring some gaping holes in the Brady argument, but the point remains: this is an unanswered question and they have an argument here. Not a very good one, but an argument all the same.



But they then trash their entire thesis by re-arguing Heller. Again.



And in the process they also create a unique form of scrutiny oddly enough called the "Reasonable Regulation Test" (wonder where they got that?) that contradicts one of the main holdings of Heller and McDonald:



Quote: Municipal respondents assert that, although most state constitutions protect firearms rights, state courts have held that these rights are subject to interest-balancing and have sustained a variety of restrictions. Brief for Municipal Respondents 2331. In Heller, however, we

expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing, 554 U. S., at ______ (slip op., at 62 63), and this Court decades ago abandoned the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights, Malloy, supra, at 1011 (internal quotation marks omitted).



I can see this being echoed in MD and other places. It's really the only thing they got left. Brady did a good job putting this together. They took a page from the SAF and did some research into history and law in many parts of the USA over the post-Heller years and used it to define one of their two primary arguments: that Heller does not extend protection to public carry.Their primary evidence here is that the Heller Court had "ample opportunity" to say such a right existed, but chose not to. Quite the contrary -- Scalia went "out of his way" to "highlight" that many existing gun laws are "presumed valid". They also note that the Heller Court specifically cited laws against concealed carry as presumptively legal. Brady argues that the contention such restrictions are only legal in the face of an open carry allowance as being bunk. They say if this were the case, the Heller Court would have balanced the over-the-top assurances of presumptive legality of CCW restrictions with an Open Carry discussion. Good point.But they of course cherry-picked the Heller and McDonald decisions. As a matter of fact, they then expound on a long discourse on the evils of guns, the inherent danger associated in them, and how this calls for an "interest balancing approach" to be used just for 2A. So right as they started to get some intellectual traction, they completely fall off the wagon and jump right into old pattern. Oldpatterns.Never mentioned is the fact that both Heller and McDonald specifically dismissed that approach. Brady spends much time separating 2A from 1A - creating a unique standard to review 2A restrictions. This new standard is called "Reasonable Regulation" and sits between rational basis and Intermediate. In other words - Rational Basis with a new name.They are re-arguing Heller while claiming to hold it as evidence of their argument. Their argument is predicated on two points:- Heller does not protect carrying of arms outside the home- Even if it does, "reasonable regulation" means we can legislate the right away if we choose because 2A requires a unique "interest balancing approach" compared to other rights.The argument that Heller did not protect public carry is their strongest argument. So strong that this is the primary topic of contention in many cases nationwide. It is the core question of our own MD case. Brady is reading tea leaves, but to some extent we all are. Who says our tea is stronger than theirs? I am ignoring some gaping holes in the Brady argument, but the point remains: this is an unanswered question and they have an argument here. Not a very good one, but an argument all the same.But they then trash their entire thesis by re-arguing Heller. Again.And in the process they also create a unique form of scrutiny oddly enough called the "Reasonable Regulation Test" (wonder where they got that?) that contradicts one of the main holdings of Heller and McDonald:They only argument they have is that Heller/McDonald did not define a right to public carry. Everything else is pure hogwash and has been summarily rejected by the Supreme Court. In McDonald the Court even went so far as to express frustration with the arguments at all, because it was re-litigating a decision they made.I can see this being echoed in MD and other places. It's really the only thing they got left.