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August 20, 2009, 01:49 PM | #1 | |
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7th Circuit says registration does not violate RKBA
In this case, John Justice v. Town of Cicero, the city requires that all guns be registered. Mr. Justice (ha!) had six unregistered pistols and got caught. On appeal the 7th Circuit again holds that the second amendment is not incorporated, but the opinion goes on to say that even if it was incorporated registration would be permissible under Heller.
Here is the relevant part of the opinion: Quote:
The Judge who wrote the opinion, Wood, was one of the chief contenders for the Souter's seat.
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The only thing of value which we have at present is our arms and our courage. So long as we keep our arms we fancy that we can make good use of our courage; but if we surrender our arms we shall lose our lives as well. -Theopompus Last edited by green-grizzly; August 20, 2009 at 01:51 PM. Reason: Added link |
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August 20, 2009, 01:55 PM | #2 |
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I disagree.
The judge in this case is honestly interpreting the Illinois Constitution which says their equivalent of 2A is subject to police power. Dumb on the part of the drafters of that Constitution, but that's the wording of the supreme law of that State. Without incorporation, it stands. With incorporation, you have a conflict between State and Federal Constitutions, something that I have no idea how is resolved. the COTUS is the supreme law of the land, but the Illinois Constitution has been in place for quite some time and is well established. It will take some wrestling to get fixed so that a State Constitution is amended to comply with the COTUS rather than having a line simply disappear from it. |
August 20, 2009, 03:06 PM | #3 |
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It cannot escape my thoughts that these judges are hideously slanted because of where they are located, either by their own corrupt volition or by being political hostage to Daley and his goons. They may very well know they can't walk out of their courtroom after having ruled any possible way other than 100% against the 2nd Amendment or else be ruined or even possibly not live to see the next day--the people who control the police and the state justice system probably wouldn't bat an eyelash to do whatever it takes to maintain their iron grip. It sounds farfetched but given the other actions of the Daley machine I honestly don't put it past them.
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August 20, 2009, 03:30 PM | #4 |
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Makes me so glad, once again, I live in the repressed low income back woods state of Bikini.... errrrrr Florida!
I cannot fathom living with such government intrusion. Brent |
August 21, 2009, 03:56 PM | #5 |
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Yeah, there's a reason I changed residency, when I could!
I agree that registration would not violate the IL Constitution. Heller did not address pure registration schemes, and but also indicated that they were probably legal under the 2nd. I don't like it very much, but that's how I read it. |
August 22, 2009, 05:30 AM | #6 |
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An incorporated 2A right would mean that a registration scheme would be presumed unconstitutional unless it is proven to be necessary to a legitimate government goal and reasonably adapted to achieving that goal, or something like that, right?
They're going to say it's necessary to track illegal sales and guns used in crimes, and keeping track of who owns which gun seems reasonably adapted to that purpose. I'd be interested in hearing how we win that one, because I don't think we do. |
August 22, 2009, 07:21 AM | #7 | |
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Quote:
See Sherbert v. Verner (1963) and Sweezy v. New Hampshire (1957).
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August 22, 2009, 08:30 AM | #8 |
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One problem with registration is that it wouldn't apply to convicted felons. Making convicted felons register their guns in a registration scheme that aims to keep guns out of prohibited hands would be a violation of their 5th amendment rights.
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August 22, 2009, 08:34 AM | #9 | |
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Quote:
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August 22, 2009, 08:54 AM | #10 | |
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August 22, 2009, 09:48 AM | #11 |
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Publius, isn't that only true if the standard used is "strict scrutiny?" So far, there is no real standard of review. Heller only hinted at a standard, but never actually set one, IIRC.
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August 22, 2009, 04:59 PM | #12 | |
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Quote:
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August 23, 2009, 09:38 PM | #13 | |
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Quote:
Heller held, among other things, that the right to own a firearm is a fundamental right. We are in strict scrutiny unless the Court rules otherwise, and that would be a rather large exception to general Constitutional Law.
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August 23, 2009, 09:44 PM | #14 |
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I'm fairly certain that Heller ruled out an interest-balancing or rational-basis standard of review as it relates to the second amendment.
From Heller: JUSTICE BREYER moves on to make a broad jurispruden- tial point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest- balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Post, at 10. After an exhaustive discussion of the arguments for and against gun control, JUSTICE BREYER arrives at his interest- balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already dis- cussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED. We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the . . . Cite as: 554 U. S. ____ (2008) 63 Opinion of the Court . . . third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insist- ing upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. |
August 24, 2009, 01:02 PM | #15 | |
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Quote:
Congress just made the Transferor do the legal paperwork instead of the Transferee. The result is that the person possessing the firearm lawfully (the manufacturer, FFL or person who bought it from them) does the registration. The criminal doesn't have to register (so no 5th Amendment violation) but possessing an unregistered firearm is still a violation. |
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August 24, 2009, 02:34 PM | #16 | |
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Quote:
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The only thing of value which we have at present is our arms and our courage. So long as we keep our arms we fancy that we can make good use of our courage; but if we surrender our arms we shall lose our lives as well. -Theopompus |
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August 27, 2009, 05:31 PM | #18 | ||
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Quote:
Quote:
Judges Tinder and Bauer were appointed by Bush Jr. and Ford, respectively. Judge Wood was appointed by Clinton.
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