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Old November 16, 2009, 01:28 PM   #1
Bartholomew Roberts
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Will the AWB make a come-back at the State level in 2010?

Strategically, I think it will. If we lose in McDonald, where the Second Amendment is not applied against the states, then attacking at the state level avoids the problems of federal regulation and it de-emphasizes the utter loss of power by the Brady Campaign even among their advocates in the Democratic leadership (who appear to prefer Congressional power over the Brady Campaign).

If we win in McDonald, then AWBs at the state and local level actually become MORE important, not less, since the next obvious battle will be whether or not the Second Amendment protects semi-automatic weapons with a military heritage or look. The more restrictive the antis can make existing bans and the more bans they can add up at the state level, the easier it will be to look at the Supreme Court and say "These are not weapons in common use."

You can already see the groundwork for this type of thing being laid by individual cities passing AWB ordinances despite statewide preemption laws.

Of course the flip side of this is that if these efforts are overwhelmingly rejected at the state level, the antis will end up producing evidence against their common use case - which is why it is really important that gunowners respond to this push by lending a hand politically and sending some extra cash to your favorite gun rights group instead of hoarding 400 stripped lowers and hoping they don't pass legislation that makes your collection useless.
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Old November 16, 2009, 03:28 PM   #2
Technosavant
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Court cases are irrelevant when it comes to the AWB.

Keep in mind that both the federal and state AWBs came about in a pre-Heller atmosphere, where the RKBA was seen as nothing more than a collective right and there was no limit on the allowable infringements. Had Heller been lost, it wouldn't have changed the legal atmosphere one little bit- it might have given encouragement to anti-gun forces, but it would have done nothing but enshrine the state of being that we'd all been living in already. Some states, in that anything goes atmosphere, did indeed enact AWBs. Others did not because the citizens did not let it happen.

Even post-Heller, we're still in a period where there aren't many infringements beyond the pale- apparently a complete prohibition on ownership of handguns is that. Anything else is up in the air, just as it has been.

If people keep fighting anti-gun legislation at state and local levels, the anti-gun forces will be able to enact the sort of things they've already been able to do while being unable to pass the legislation they've already failed with thus far. Our losing a court case might be like saying "sic 'em" to them, but it won't really change the actual legislative environment.
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Old November 16, 2009, 04:27 PM   #3
Tom Servo
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Quote:
which is why it is really important that gunowners respond to this push by lending a hand politically and sending some extra cash to your favorite gun rights group instead of hoarding 400 stripped lowers and hoping they don't pass legislation that makes your collection useless.
Hey, it was only 300 lowers

The chances of us losing in McDonald are slim, but let's take that as a worst-case scenario.

Things have changed since 1993. The last AWB came about because we weren't ready, because the rhetoric was too easy to sell to a blissfully ignorant populace, and because the academic and legal communities still believed the whole "collective rights" argument about the 2A.

We can look to the silly post-election buying panic as a really good example of that. People are acutely aware of the effects of a ban, and even if only a tiny fraction of them are willing to do something about it, we've got a pretty substantial core of activists. The current generation of shooters remembers the 94-04 AWB very acutely, and they're not likely to stand by and let it happen in most cases.

The current situation in Washington has been a lightning rod for a "conservative" backlash, and the RKBA is a cornerstone of the conservative philosophy. There's already a cadre of very angry folks out there, and another AWB would just be another poke at the wasps' nest.

Now, as far as state or municipal bans, it could happen in parts of Massachusetts, Illinois, California and New York. However, even if the precedent of McDonald doesn't work, there are legal challenges available via Heller. There's language in Heller that precludes any sort of blanket ban, and there was mention of civilians needing militia-class weapons to serve effectively as militiamen.

The reach and limits of the Heller decision haven't been defined yet. Bear in mind, we're in uncharted territory when it comes to 2nd Amendment jurisprudence, and the maps are still being drawn. If anything, an AWB in Peoria would be an opportunity for a lawsuit that could define and expand those lines.

Will they try sneaky stuff? No doubt. Will it be an overt AWB? I really don't see it happening.
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Old November 16, 2009, 04:49 PM   #4
Bartholomew Roberts
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Don't get me wrong... I have no doubts that we have the collective power to stop the legislation anywhere it has not already been passed. I am just pointing out that this fight is coming (again) at the state and local level in 2010.

To the extent that they can do it, I expect them to try more municipal regulation (like the debacle in Ohio) because cities offer a better basis to try and sell that kind of regulation and also because they are more populous.

Quote:
If anything, an AWB in Peoria would be an opportunity for a lawsuit that could define and expand those lines.
That lawsuit is coming regardless. So the Brady Bunch really won't create any new lawsuit opportunity by trying to make the case that AWBs are more popular on the state and local level than they actually are.
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Old November 16, 2009, 04:52 PM   #5
Brian Pfleuger
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Make a come-back? Dang. We're still trying to kill the friggin' thing in NY. The last thing we need is for it to zombie up on us.
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Old November 16, 2009, 06:24 PM   #6
maestro pistolero
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The Supreme court has no desire to throw the lower courts into chaos. I think they will, at least in dicta, attempt to weave in some guidance as to what will likely be tenable, or not, under an incorporation scenario. They did it in Heller, to some extent.

Whatever the degree of their motivation to offer guidance in Heller, it ought to be greater in McDonald. The justices were cognizant that Heller did not address incorporation, and they will understand the far reaching questions that a pure incorporation case will raise for the lower courts.

Scalia is sensitive to the question of what arms are to be protected, being the one who wrote the opinion and rolled out both the dubious 'sensitive places', and 'common use' tests, (if, in fact they are tests) as well as the 'in the home' question. The latter phrase has been turned on it's head by antis so many times it is developing a flat spot; they confuse the scope of the Heller case with the extent of the right itself.

Seeing the confusion (and I suspect intentional misinterpretation) that has ensued since Heller, members of the court will be motivated to explain themselves, if limited by the scope in their actual ruling.

Last edited by maestro pistolero; November 16, 2009 at 06:52 PM.
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Old November 16, 2009, 10:08 PM   #7
Technosavant
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Quote:
Don't get me wrong... I have no doubts that we have the collective power to stop the legislation anywhere it has not already been passed. I am just pointing out that this fight is coming (again) at the state and local level in 2010.

To the extent that they can do it, I expect them to try more municipal regulation (like the debacle in Ohio) because cities offer a better basis to try and sell that kind of regulation and also because they are more populous.
I doubt the fight will ever stop, no matter what court battles are fought and won (or lost). They've ignored the actual Constitution, so ignoring court decisions is pretty likely too.

Still, my point was that if the anti-gun forces thought they could get a ban through at any level, they would have done so already. While they may indeed shift to the state or municipal levels, most states have been down this road to some extent already. Additionally, many states also have preemption at the state level- municipalities are unable to pass stricter laws. For those other states without preemption, well, the areas likely to pass such things are probably also likely to have done so already.
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Old November 17, 2009, 05:47 PM   #8
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Actually, I don't see McDonald having much effect one way or the other on AWB's. Heller only really said that complete prohibitions were unconstitutional and McDonald decides little more that whether that applies to states or the feds only. In the Heller opinion, Scalia said that prohibitions on "dangerous or unusual" arms were still OK, so until we get a definition for what exactly a "dangerous or unusual" arm is, I don't see Heller or McDonald doing anything about AWB's. That being said, I don't really think you're going to see any new state AWB's given the current political climate. Gun control is, by and large, a losing issue for the Democrats and has been, for the most part, since the '94 AWB. When Harry Reid won't support a new AWB even immediately after Virginia Tech and Rahm Emanuel tells Eric Holder to shut up about gun control, it tells me that everyone but the usual suspects from the most left wing districts (Feinstein, Boxer, Schumer, McCarthy, etc.) are scared to touch guns right now. By and large, the states where an AWB could pass already have them anyway (New York, Massachussetts, California). The only new bans that I can see happening right now are municipal bans in places like Chicago should their all-gun bans be struck down. Like DC, I can see these places scrambling to ban as much as they can without running afoul of SCOTUS.
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Old November 30, 2009, 04:45 PM   #9
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I believe that there will be a new push in certain states. The "gun-control" organizations are always scheming.
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