Thursday, June 26, 2014

Fundamental rights and contrasts with Kitchen v. Herbert versus Peterson v. Martinez

As some may know, I share with the plaintiffs in the recent Kitchen decision of having a decision made by the United States Court of Appeals for the Tenth Circuit, specifically written by Judge Lucero.

n that decision, Judge Carlos Lucero write both the majority opinion which was supported by two judges and his own concurring opinion on the matter of my case.

The 10th Circuit majority opinion ruled essentially that "open carry" was the 2nd amendment bear right. However Judge Carlos Lucero wrote a concurring opinion which went further on his own that stated that even if concealed could possibly be the right, he would have essentially ruled that I would lose the case anyway, citing Kachalsky v. Cacace.

Compare and contrast from his concurring opinion in Peterson:

Cognizant of these relevant factors and the statement in Heller that "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues," 554 U.S. at 626, 128 S.Ct. 2783, Peterson's challenge triggers, at most, intermediate scrutiny. See Reese, 627 F.3d at 801 (noting that the level of scrutiny depends "at least in part, upon the type of law challenged and the type of Second Amendment restriction at issue" (quotation and alterations omitted)).

I would apply intermediate scrutiny to both claims to the extent concealed carry is protected, and would hold that the state has carried its burden under that standard.

Versus his majority opinion in Kitchen:

The Due Process Clause “forbids the government to infringe certain fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 302 (1993) (quotation and emphasis omitted). By the same token, if a classification “impinge[s] upon the exercise of a fundamental right,” the Equal Protection Clause requires “the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest.” Plyler v. Doe, 457 U.S. 202, 216-17 (quotation omitted). Having persuaded us that the right to marry is a fundamental liberty, plaintiffs will prevail on their due process and equal protection claims unless appellants can show that Amendment 3 survives strict scrutiny

Though I clearly support Judge Lucero's Kitchen decision as clearly correct (and I find no fault in it), the clear hypocrisy of Judge Lucero's previous decision involving my case versus his decision in Kitchen is clear in light of McDonald v. City of Chicago, where the words "fundamental right" is mentioned 19 times in the plurality plus concurring opinion by Justice Thomas, about the 2nd amendment being enumerated and therefor fundamental right.

In both my case and in Kitchen, Judge Lucero decided that he had "the power to decide on a case-by-case basis whether the right is really worth insisting upon". (McDonald v. City of Chicago, Ill., 130 S. Ct. 3050).

When it came to the right to marry that's being denied to gay couples (of which I'm also personally affected by this because of the Utah recognition ban), an un-enumerated though considered fundamental right was worth insisting upon.

When it came to visitors to the state who wished to be able to carry, in some form, while visiting the state of Colorado's capital city, he decided that it was not worth insisting on, despite it's enumerated and declared fundamental nature in McDonald.