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Old June 29, 2010, 08:58 AM   #51
Brian Pfleuger
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What I see happening is a push by the Antis to limit the features of weapons. They won't "ban whole classes", they will provide requirements that will effectively ban whole classes.

Things like 5 (or 2!) round magazine limits.

Caliber restrictions.

Ammo type limits.

Microstamping.

CoBIS requirements.


and the list goes on..... and so does the fight.... my children will still be fighting it.
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Old June 29, 2010, 09:09 AM   #52
zukiphile
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Actually its not. You have the burden, not the state. Elementary civil procedure.
Maybe we owe laymen more than that sort of dismissal.

He was addressing strict scrutiny in which the challenged law must be found to be narrowly tailored and the least restictive means to accomplish a compelling governmental interest. Since the challenger will always argue a failure to meet that standard, the burden is effectively shifted to the state.

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Help me through this AWB. If Heller says you can't ban a class of firearms in common use for lawful purposes and the AR-15 is the best selling rifle in America AND the Brady's have created a "class" of firearms the AR-15 is a part of so called "assault weapons" class why wouldn't Heller be useful to challenge a ban since the AR-15 is in common use and is a firearms class? Breyer seemed to think it would.
Even if Breyer were in the majority in Heller, his dicta wouldn't bind the court in the future. I don't think Heller was tied to any specific definition of class, so that remains a concept sufficiently plastic to get any advocate where he would like to go.

It is an interesting argument though.
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Old June 29, 2010, 11:30 AM   #53
vranasaurus
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While Heller and McDonald set no precedent for or against AWBs the dicta does provide some ammunition to use against AWBs.

"Assault Weapons" are essentially semi-automatic rifles with certain features. They would certainly be a class of firearms.

They are definitely in common use as evidenced by sales.

And they make very effective self defense weapons in the home

I think in any case the government interest that will always be argued is the basis for gun control is gun crime.

The old federal AWB really furthered no government interest. So I don't see how it stands up to either intermediate or strict scrutiny.

California's AWB is much more onerous because it has effectively banned a class of firearms. Sure there are bullet buttons or monstergrips but that really changes the rifle in a substantial way. California can argue that their ban actually furthered there interest in controlling crime by getting AW's off the street. (I don't agree but that's their argument) Unlike the federal ban which was simply cosmetic and didn't really ban anything. IMO California's ban would have a chance under intermediate scrutiny but not strict scrutiny.

My argument against the AWB under intermediate scrutiny would be based upon it's lack of impact in the area of crime reduction. If you can show it furthers no important government interest you've got a shot.

Under strict scrutiny I don't think you can show the furtherance of a compelling government interest, that an AWB is narrowly tailored, and is the least restrictvie means.

With McDonald decided it shouldn't be too long before Califonria's AWB gets challenged under the second amendment.

Magazine capcaity limits I just don't see surviving a challenge. How does it further a government interest in stoping gun crime?

1 handgun a month rules will probably survive. This is especially true of intermediate scrutiny as slowing down gun trafficking is an important interest and it directly relates to that interest. Under strict scrutiny it largely depends depends on how narrowly the court considers it tailored and are than any other less restrictive means. I would certainly argue that changing the requirements for doing the multiple handgun purchase form from 2 or more handguns in a 5 day period (I believe that is the rule, someone will correct me I am sure) to 2 or more in a 30 day period would allow the government to control trafficking and be less restrictive than a total ban on multiple sales.

And last I think we need a new thread just discussing the constitutionality of registration because that is the big issue.
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Old June 29, 2010, 11:40 AM   #54
mack59
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Let’s see the thread title.

“Whither Gun Control Under McDonald? “

And the OP post.


“I submit:

1. AWBs on magazine size, cosmetic features...constitutional
2. Limitations on open and concealed carry...constitutional.
3. Registration: constitutional


Who disagrees and why?”


So the original question was speculating about the implications of the Heller/McDonald cases. I responded with “speculation” based on the text in McDonald and Heller and the courts history of treatment of individual fundamental rights in light of intermediate or strict scrutiny.


Then I assumed that another party joins the speculation on what the probable legal implications of a fundamental individual right to keep and bear arms will be on the constitutionality of future laws or the litigation of present laws. But find I am wrong as I am being taken to task for somehow asserting that the McDonald or Heller decisions ruled on AW bans or other issues not related to keeping a handgun in the home for self defense.

So to clarify, again, yes I know the Heller and McDonald decisions only ruled on the issue of the second amendment protecting the right to keep a handgun in the home for self defense and whether or not that extended to the states.

I also know that the decisions in Heller and McDonald established a in the words of the court a fundamental individual right to keep and bear arms for self defense that applies to both the federal government and the states - that is in the text of the decisions.

I also know that the court in identifying the right in it’s decisions - clearly stated that firearms in common use were protected by the right and that the right by implication of the court’s specific language regarding carrying - i. e. - that carry may be prohibited in government buildings, schools, and sensitive places - obviously sees some form or regulated carry as part of the constitutional right.

That in identifying the right the court also took the rational basis test off the table as they took Justice Breyer’s balance test off the table. By default that leaves either intermediate or strict scrutiny and that logically implies that the government may not arbitrarily impose limitations on the right and must carry a burden of proof before limiting that right.

Thus the answers to the original posters questions are relatively clear:

1. Any AW ban based on cosmetics cannot by definition meet the burden of proof that the government would be required to meet to infringe a fundamental individual right under either intermediate or strict scrutiny, particularly when the weapons typically banned are weapons in common use, or magazines in common use ….. Etc….

2. The court stated that carry may be regulated - but it implied through its emphasis on self defense and through its specificity on what would be constitutional areas where carry might be banned - government buildings, schools, and sensitive places - as well as implied in its recognition of an individual right - and in the fact that it would be highly unlikely given its ruling that the court would essentially nullify any real meaning to the word “bear” in the second amendment - that carry or bearing arms is part of the right - though states might regulate whether that was open and or concealed carry - but not ban both.

3. I could not clearly see where anything in the right identified in Heller and McDonald would rule out registration - so long as it did not materially infringe the RKBA.

In response I got that Heller and McDonald did not decide these issues - well yeah. No one is claiming that they did - what they did do was identify a fundamental individual right to keep and arms - and yes that does logically and reasonably imply that that right does and will have significant legal implications beyond just the specific issue addressed in those cases - particularly if one reviews the text of the opinions by the majority that provide the basis for their decisions.


“It's ok. Every so often I have to venture in here just to remind myself why I normally avoid it like the plague.”

But I guess then, I have been dismissed.

And Wildalaska, I would appreciate if you could respond to the points I have raised from the beginning - on what basis would a cosmetic AW ban be constitutional - why would the court allow the government to arbitrarily infringe a fundamental individual right under strict or even intermediate scrutiny? Is there anything in the text of the decisions or the history of the court and/or of its treatment of fundamental individual rights that would lead you to believe that such would be upheld as constitutional?

As I said before the only reason I can see that you would believe that such a ban would be constitutional is that you believe that the burden of proof in on the citizen to prove that he “needs” a particular arm. But that is incorrect once the court has identified, as it has in Heller and McDonald, that the individual has a fundamental individual right keep and bear arms - the onus is then upon the government.

And yes again, this is on the understanding that the right will cover more than just the specific issue at question in Heller and McDonald.
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Old June 29, 2010, 12:09 PM   #55
Wildalaska
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Since the challenger will always argue a failure to meet that standard, the burden is effectively shifted to the state.
Zuk, it's more though than just screeching "unconstitutional", the plaintiff must set forth some facts to shift that burden.

I was sort of hoping folks would do something like.....yeah maybe take a look at the legislative history of the Federal AWB and provide me with some articulable reason to conclude a cosmetic AWB would fail under Heller.

Instead we get the veiled ad hominems. Ce la vie

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Old June 29, 2010, 12:16 PM   #56
mack59
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With an individual fundamental right under strict or intemediate scrutiny the burden is shifted once an individual is denied by law the right to purchase, keep, possess the weapon in question.

But then we evidently disagree on that.
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Old June 29, 2010, 12:30 PM   #57
mack59
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Jim,

Read your document and I generally agree with you - and I would probably by inclined to defer to your view anyway. Sorry, I do not have time to give you an attempt at editing for grammar and spelling, for what use it would be anyway. But just wanted you to know that I appreciate the work and sharing it here. I would say that depending on your use or what purpose you intend to make of it that generally I would suggest removing some of the informal language as it conflicts or clashes with the language used by yourself and the courts and detracts somewhat from the quality of your work. Also the last part where you begin to address some of the CCW laws state by state could perhaps use a little more detail or specificity - though in a sense I know that would be hard to do as except where there are speciifc court cases pending you are stuck having to do all the work yourself.

Anyway, I learned from reading it and that is to me one of the highest compliments that can be made for any written work - thank you.
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Old June 29, 2010, 01:27 PM   #58
Tom Servo
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I was sort of hoping folks would do something like.....yeah maybe take a look at the legislative history of the Federal AWB and provide me with some articulable reason to conclude a cosmetic AWB would fail under Heller.
Sadly, I'm not sure it would, in the courts.

The legislature is a different matter, however. If we were going to be getting another AWB, then it would have come down by now.

As far as a conflict with Heller, it depends on who's weighing it. If we're talking about a federal ban, we're looking to the Supreme Court. If we're talking about a local/state ban, we're looking to whatever Circuit court is relevant.

If it's a state/local ban, it'll likely be in a Circuit that's not going to be supportive of the 2A. Then you have to work it up the ladder to the Supreme Court, which could be very difficult.

It can be argued that Heller only covered handguns. It can be argued that Heller only covered weapons "in common use," and that some of the weapons banned do not fit that bill. Respondents could point out Scalia's dicta that the 2nd Amendment does not protect the right to have "any kind of gun."

I submit that Heller, like McDonald, is more of a philosophical than practical victory. Now we need concrete cases to give both rulings teeth.

Quote:
Instead we get the veiled ad hominems. Ce la vie
Actually, it's "cest la vie." I guess you don't get too many French speakers in the wilds of Alaska
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Old June 29, 2010, 01:43 PM   #59
Wildalaska
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Actually, it's "cest la vie." I guess you don't get too many French speakers in the wilds of Alaska
Nope...and I cant type in English, what makes you think I can type in French

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