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Old March 23, 2009, 07:35 PM   #1
Einherjar
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Can someone answer 2 questions on the 2nd ammendment ruling?

Hello all!

I am new to the forum and this is my first post. I know I could have searched for this but figured I needed a first post anyway

With the new 2nd amendment ruling, are all states now shall issue states? Did it abolish "discretionary issue"?

Also, did it allow anyone with a pistol permit, the right to carry a pistol, or just to own one?
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Old March 23, 2009, 09:26 PM   #2
rwilson452
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Assuming you referring to the Heller case. Thus far it only affects federal law mainly DC as it is a federal governed place. As yet the 2nd has not been incorporated under the 14 amendment. Sorry, NY Sate laws are unaffected so far. Court battles are underway to have the 2nd incorporated. It is a long process, years. Heller was a step forward.
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Old March 23, 2009, 09:57 PM   #3
csmsss
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A couple of other points. First, Heller is silent with respect to the personal carrying of firearms and in no case, incorporation or no, can it be construed as extending the right of citizens to carry firearms on their persons.

Second, Heller speaks only to laws which effectively prohibit ALL firearms that might legitimately be suitable for self-defense. It specifically provides for "reasonable" regulation of firearms - it just doesn't make clear what reasonable means nor how reasonable restrictions would be implemented.

Third, Heller is entirely silent on the issue of ammunition restrictions, taxation and prohibition. It's entirely conceivable that an end-run around Heller, even were it incorporated via the 14th Amendment to states, cities and counties, can be made just by enacting such laws which would basically make ammunition illegal, even if the firearms in which that ammunition would be used would be perfectly legal.

Last, my opinion is that Heller v. DC is a purely symbolic one. I find it to be very poorly written, and to interpret the 2nd Amendment too narrowly - basically setting the stage for future parsing of 2nd Amendment rights into such arbitrarily and rigidly defined wedges that these rights exist in name only. I hope I'm wrong.
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Old March 24, 2009, 12:04 AM   #4
BillCA
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To Einherjar's questions, the answer in both cases is "no".

The Heller case is significant in that the Supreme Court recoginized that the 2nd Amendment is an individual right, not some "collective right" of states to have a militia.

Because the case was decided based upon a challenge to a Washington D.C. law, no state law was involved. Thus, under the old Barron v. Baltimore precedent, the 2nd Amendment remains a limitation only against the federal government.

There are cases pending before the 9th Circuit (Nordyke in California) and the 7th Circuit (MacDonald in Illinois) that ask the courts to address the subject of applying the 2nd Amendment to the states (aka: Incorporation).

The vast majority of the Bill of Rights has been incorporated as also applying to the states under the 14th Amendment (equal protection). The 2nd Amendment application has yet to be decided. Until then, states are free to pass any gun laws as do not conflict with their own state constitutions.

When the 2nd Amendment is incorporated, many states will be forced to revise some of their gun laws. Most vulnerable will be 1-gun-a-month laws, purchase permits, schemes like the Illinois Firearm owner's card, excessive waiting periods after purchase and similar restrictions. It will take a considerable amount of time for courts to reach the issue of "bearing" arms in the proper light.
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Old March 24, 2009, 08:54 AM   #5
Al Norris
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For A good background on what the Heller case did or didn't do, read this thread. It is from the old L&P forum and is a read-only archive.

From that thread, BillCA in post #92 writes:
  • The Second Amendment protects an individual right to possess a firearm;
  • No connection with a "militia" is necessary to possess a firearm;
  • Citizens can use a firearm for traditionally lawful purposes, such as self-defense within the home;
  • The court views "militia weapons" to be "firearms in common use at the time" which would include most common handguns, rifles and shotguns, but not necessarily a sawed-off shotgun or other " dangerous and unusual weapons".
  • The right is not absolute and the court did not change many of the existing restrictions, such as prohibitions against felons or the mentally ill from possessing firearms.
  • The court left intact most existing restrictions, such as prohibitions against carrying in certain buildings or schools.
  • Nor did the court suggest laws imposing conditions and qualifications on commercial sales were unconstitutional in this decision.
  • The question of protection for automatic rifles, like the M-16, is still debatable.
  • The Court let stand the D.C. licensing arrangement since that was not contested as unconstitutional.

The decision in Heller was monumental, only because for the first time since the founding of our country, has the Supreme Court ruled that the second amendment is in fact, an individual right and not contingent upon any military venue.

Justice Scalia, writing for the majority, said many things. Mostly in dicta, however. Many of these things will be brought up in other cases and may become law.

Despite the opinion of csmsss, Heller was very well written, when considering the narrowness of the questions asked and answered. That the decision did not reach further, is to criticize the Court for not deciding an issue that it was not presented with.
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Old March 24, 2009, 10:24 AM   #6
Vanya
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Bill, Al, those are fine, clear answers.

Might want to make this a sticky?
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Old March 25, 2009, 12:32 AM   #7
Ricky B
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As a side note, many states have their own versions of the Second Amendment. In those states, there is a right to keep and bear arms, and the Heller opinion would be of persuasive (not binding) to state courts interpreting their own version of the Second Amendment. Of course, most states have not gone as far as D.C. went in prohibiting gun ownership, and Heller principally stands for the proposition that an outright ban on ownership (by the federal govt.) is not permissible.

Heller was quite clear that reasonable restrictions would be permissible, and what restrictions are permissible remain to be seen.
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Old March 26, 2009, 12:21 AM   #8
BillCA
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Al has a better memory than I do!

As someone wiser than I said after SCOTUS heard the oral arguments, the first thing is to get the 2A ruled as an individual right. The next thing is to seek incorporation against the states. After incorporation, the next question to be asked will be "Is the right sufficiently fundamental as to outweigh government imposed delays to exercising the right?" This would include waiting periods, purchasing a "safety" card or first obtaining a "permit" to own or purchase.

If we get the delays and special-expense permits overruled it sets the stage for addressing permits to carry openly or concealed and laws against both. How can an individual exercise his right to "bear" arms when laws prohibit both carrying openly and concealed?
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Old March 26, 2009, 05:20 AM   #9
jlj676
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i like vermonts 2nd ammendment law.... there are none and have one of the lowest crime rates. wish i lived there
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Old March 26, 2009, 05:44 AM   #10
Mike Irwin
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There has been, unfortunately, a LOT of misinformation going around about what the Heller ruling actually does for gunowners.

I've heard people claim that it makes all gun laws in the United States obsolete and that it's going to be murder and mayhem with blood in the streets (guess which side of the debate that person was on). Obviously not true.

And I've heard the equivalent from pro gunners who say they're going to run right out and buy the new cheap machine guns that this law allows. Unfortunately also not true.
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