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Thread: Time to engage the General Assemby or take them to court!!

  1. #1
    Regular Member carolina guy's Avatar
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    Jun 2012
    Concord, NC

    Time to engage the General Assemby or take them to court!!

    Here are some thoughts (while waiting for slow computers at work):

    The 2nd Amendment:
    - Individual right & Right to self defense --> District of Columbia v. Heller, 554 U.S. 570 (2008),
    - Applies to states via 14a --> McDonald v. City of Chicago, 130 S. Ct. 3020 (2010)

    The 14th Amendment: equal protection under the law for all citizens

    NC Constitution:

    Sec. 30. Militia and the right to bear arms.
    A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice.

    Recent NC court case: Bateman v Perdue (2012) S:10-CV-26S-H Established/reaffirmed

    1) higher level of scrutiny for 2nd Amendment cases

    2) Two part test per --> United States v. Chester, 628 F.3d 673 (2010) that includes:

    A requirement for the courts/government to "inquire[s] whether the statute in question 'imposes a burden on conduct falling within the scope of the Second Amendment's guarantee."

    (quoting from the Bateman, in bits and pieces...lot's of snipping... )

    In Heller, the Supreme Court found that the Second Amendment includes "the right to 'protect [onself] against both public and private violence,' thus extending the right in some form to wherever a person could become exposed to public or private violence." United States v. Masciandaro, 638 F.3d 458, 467 (4th Cir. 2011)

    Therefore, the Second Amendment right to keep and bear arms "is not strictly limited to the home environment but extends in some form to wherever those activities or needs occur."

    Intermediate scrutiny requires a "substantial " or "important" government interest and a "reasonable fit between the regulation and the government interest. Chester, 628 F.3d at 683.

    The fit between the challenged restriction and the asserted interest need not be perfect, but the regulation may not burden more protected conduct than is reasonably necessary. Marzzarella, 614 F.3d at 98

    Note: Among the descriptive terms used to characterize the requisite governmental interest for purposes of intermediate scrutiny are "significant," "serious" "strong," "compelling" and "cogent". See United States v. O'Brien, 391 U.S. 367 1 37677 (1968).

    There is no dispute that defendants have a compelling interest in public safety and general crime prevention. See Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 376 (recognizing "significant governmental interest in public safety").

    "[P]rotecting the community from crime' by keeping guns out of the hands of dangerous persons is an important governmental interest." United States v. Carter, 669 F.3d 411, 417 (2012).

    The problem here is that the emergency declaration statutes, are not narrowly tailored to serve the government's interest in public safety. They do not target dangerous individuals or dangerous conduct. Nor do they seek to impose reasonable time, place and manner restrictions by, for example, imposing a curfew to allow the exercise of Second Amendment rights during circumscribed times. Rather, the statutes here excessively intrude upon plaintiffs' Second Amendment rights by effectively banning them (and the public at large) from engaging in conduct that is at the very core of the Second Amendment at a time when the need for self-defense may be at its very greatest. See Heller, 128 S. Ct. at 2799

    1) I have a protected right to self defense in and outside of my home under the 2nd Amendment.

    2) It could be argued that restrictions on carrying in restaurants that serve alcohol DOES NOT serve a "compelling interest in public safety and general crime prevention" versus restaurants that do not serve alcohol. The only difference is the sale AND consumption of alcohol.

    There are other places that past or present alcohol consumption and firearms possession mingle that are not restricted, but may pose the same or greater risk of "trouble" (ie. the parking lots of restaurants/bars that do serve, a forest with hunters, a picnic, grocery stores, convenience stores, etc).

    3) The same can virtually be said about "venues that charge admission" ... what is the difference between a movie theater that changes for a movie, but then has a "free screening"? Money changing hands is the "compelling interest in public safety and general crime prevention"?

    Keep in mind that the restrictions do not target "dangerous individuals or dangerous conduct" ... rather only slight different situations that may or may not involve the person attempting to exercise their right.


    So...wouldn't a more "reasonable" restriction be according to Bateman v Perdue be to restrict the business owners to maintain a civil and law abiding establishment and not burden otherwise law abiding citizens?
    Last edited by carolina guy; 06-29-2012 at 04:58 PM.

  2. #2
    Regular Member carolina guy's Avatar
    Join Date
    Jun 2012
    Concord, NC
    Frankly, with that decision, it would seem that about the only places to restrict CONSTITUTIONAL carry would be "sensitive" government buildings (ie. courts, police stations, prisons, schools, airports, etc). The rest of the state should be fair game.

    I would even say that if a "public accommodation" wanted to restrict the right to self defense (deny carry), they should be REQUIRED to provide like quality security or bear the liability.

  3. #3
    Join Date
    Jan 2012
    earth's crust
    I don't even think that restrictions should be in any government building .. what they worried about? What wimps.

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