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Does the two-step test infringe on Second Amendment rights?

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The 9th U.S. Circuit Court of Appeals is weighing a challenge to California's Proposition 63 that created the state's problem-plagued ammunition background-check program.

In April, U.S. District Judge Roger T. Benitez said the state's program has been used to "systematically prohibit or deter an untold number of law-abiding California citizen-residents from undergoing the required background checks."

Benitez was the same judge who initially tossed out a high-capacity magazine ban.

The ruling came after a Sacramento Bee investigation in December found that nearly one in five buyers were denied the ability to legally purchase ammunition due to the law. Of the 345,547 background checks performed, the system rejected 62,000 prospective ammo purchases because information hadn't been entered into the Department of Justice gun registration database.

In a motion, Attorney General Xavier Becerra said the initial glitches in the system had improved and the background check program has been much more successful at stopping people on the state's prohibited list from buying ammo than what Benitez cited in his ruling. Becerra said 750 buyers on the state's list were blocked from acquiring ammunition.

The 9th Circuit stayed Benitez's ruling pending appeal, so the background check program is still being used.

The case's lead plaintiff is Kim Rhode, an Olympic shooter and National Rifle Association board member. In the case of Kim Rhode, ET AL., Plaintiffs-Appellees, v. Xavier Becerra plaintiffs claim the judge has failed to devote an effort to understand the right to keep and bear arms by actually examining the Second Amendment of the U.S. Constitution. Instead, the Ninth Circuit treats the Second Amendment as a privilege rather than a right by failing to apply the text as it is written, circumventing the right to keep and bear arms. This court utilizes what is dubbed the "two-step test."

Heller test vs the two-step test

The “simple Heller test” applied by Judge Benitez is a Supreme Court simple Second Amendment test. In the D.C. v. Heller case, the Supreme Court upheld that the Second Amendment protects people’s rights to possess firearms in the home for the purpose of self-defense (even when handguns were prohibited in D.C.).

The two-step test applied by the Ninth Circuit contains at least four levels of analysis. Each one requires a variety of questions to be answered in court. The first question asked by the court is if a given restriction is “presumptively lawful” or “historically approved.” If not, the court will move on to inquire whether a restriction is "within the scope" of the Second Amendment. Otherwise, the restriction is found outside of the scope of the Second Amendment and is upheld.

If Second Amendment activity is restricted, then the court could ask “how close the statute hits at the core of the Second Amendment right,” and examine the degree to which the law has a burden on that right.

Under this test, restrictions that infringe on rights that "shall not be infringed" can be upheld. Severe infringements on core rights must be heavily scrutinized. Some scrutiny must be placed on less severe infringements on peripheral rights.

When courts restrict rights guaranteed by the Second Amendment, it is often done in the guise of public safety. The government's argument in defense of these restrictions are often defended by sociological and public policy experts. This results in nearly every Second Amendment restriction being upheld in the government's interest.

What this two-step test does is trample on constitutionally protected rights. It does this by espousing legal mumbo jumbo and citing gray areas that nobody truly understands.

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