Gungnir said:
Maybe I'm misreading Isher, however the point is still pertinent.
Many states have laws that prohibit entering bars if you're exercising your 2nd amendment right, regardless of whether you drink or not; when there is no real empirical or quantitative data that suggests that it would lead to more unlawful shootings....
[1] To the extent Isher was addressing my comments, this isn't germane. The issue I raised is independent of whether or not it is legal in the jurisdiction to enter while armed a place serving alcohol or even whether it or not it's legal to carry a gun while drinking an alcoholic beverage or after having done so.
I have contended that even if it is legal for someone to go into a bar and have a drink while carrying a gun, if after having consumed alcohol you need to use your gun in self defense, there is a high probability that your having had that drink or two will complicate your legal situation. Depending on exactly what happened and how it happened, having had a drink may make it harder for you to sustain your claim that your use of lethal force was justified.
[2] The question you seem to be raising is entirely different. If I understand you, you are suggesting that state laws that prohibit a lawfully armed private citizen from entering a place where alcohol is served or prohibiting him from drinking alcohol while armed, would be unconstitutional under the 2nd Amendment. That's a different and interesting question. And there's certainly an argument there. But will a court buy it?
First, at present the 2nd Amendment doesn't apply to the states, so a 2nd Amendment challenge to these state laws would fail out of hand. We're trying to change that, and the
McDonald case currently in the Supreme Court will decide whether the 2nd Amendment will become applicable to the states. (And in the mean time, someone might choose to bring the question into a state court under a RKBA provision in that state's constitution. Any volunteers?)
Now if
McDonald is decided in our favor, the courts will be open to challenge a state's laws prohibiting going into places that serve alcohol, or drinking, while lawfully armed, under the 2nd Amendment. It would be an expensive proposition -- the bill for
Heller was something like $3.5 Million.
I have no idea how a court would be likely to rule on the question, but if someone is convinced these laws are unconstitutional, and if he has enough money, the courts are there to resolve the question.
It is, however, very well settled in Constitutional Llaw that Constitutionally protected rights may be subject to limited regulation. There is a significant body of cases defining the standard that would apply to determine if a regulation of a Constitutionally protected right is permissible.
There are several levels of scrutiny thus far applied to regulation of various types of Constitutionally protected rights. Regulations of a Constitutionally protected, fundamental right, which has generally included those rights enumerated in the Bill of Rights, are subject to a test usually referred to as "strict scrutiny." There are three prongs to this test, as follows:
[a] The regulation must be justified by a compelling governmental interest; and
The law or policy must be narrowly tailored to achieve that goal or interest; and
[c] The law or policy must be the least restrictive means for achieving that interest (i. e., there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive).
So I'd expect a state to argue that a law about going into a bar or drinking while armed served a compelling interest, etc., etc., etc. I have no idea if the state could make its case, but it would have something to talk to the court about.
Gungnir said:
...Now it could be argued that entering a bar is not a constitutionally guaranteed right, however there is the 9th that guarantees other rights not enumerated, and given the time and the collective mind that generated both the Constitution and the Bill of Rights, I'd be very surprised if they did not include consumption of at minimum beer and wine as a not enumerated right, ....
But let's not forget the 21st Amendment. It repealed Prohibition, but Section 2 provides:
"The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."
This has generally been applied to give the states great latitude in the regulation of the distribution and sale of alcoholic beverages within their borders.
