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Friday, May 18, 2018

U.S. Supreme Court Continues to Undermine Heller Decision

On Monday, the U.S. Supreme Court failed to take a case brought by the Calguns Foundation and the Second Amendment Foundation challenging a decision by Alameda, a California county that includes Oakland and other east bay cities, to enact a zoning law so onerous it effectively bans gun stores.   By failing to hear the case, the court essentially tells Californians that they have no right to buy guns.  Reason.com has more:
At least Monday's decision serves one useful purpose: It exposes the federal judiciary's willingness to elevate some constitutional rights over others.

If a city enacted zoning laws that effectively outlawed abortion clinics, and a federal appeals court had permitted it, the Supreme Court would have stepped in a heartbeat later. Under precedents going back to Maher v. Roe (1977), any law representing "direct state interference" with abortion is evaluated using strict scrutiny, the most exacting standard of legal review. Few such laws survive. (The 9th Circuit did not apply strict scrutiny to Alameda's law.)

In today's California, even adult movie theaters enjoy greater legal protections than gun stores. In a 1986 decision, the Supreme Court said the First Amendment allows municipalities to restrict such theaters (apparently they were a thing before the Internet) only if zoning laws provide a "reasonable opportunity to open and operate an adult theater within the city."
The U.S. Supreme court has not taken any meaningful Second Amendment cases since McDonald.  There currently are not four justices that are willing to vote in favor of hearing cases on the issue.  This is possibly because one or more of the remaining four that voted in the majority in Heller and McDonald are unsure whether they have five votes to find in favor of overruling a gun control law that comes before them.  No one really knows, but what we do know is Justices Thomas, Gorsuch and Alito have expressed frustration that this fundamental right becomes more and more marginalized with each case that is turned down.

The perils of this reverberate across the nation.  As cases like Maryland's so-called "assault weapons" ban, New Jersey's and Maryland's may-issue concealed carry law, and California's numerous onerous gun control laws continue to survive because SCOTUS will not hear them, the gun ban lobby will use such laws to craft legislation in other states.  Virginia is ever so close to turning anti-gun.  All it will take is to flip one seat in each house of the General Assembly for us to turn into California or New Jersey over night.

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