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Old June 28, 2010, 03:36 PM   #1
Wildalaska
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Whither Gun Control Under McDonald?

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?

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Old June 28, 2010, 04:13 PM   #2
mack59
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This must be your other thread.

The court has taken rational basis off the table - given their statement that the potential negative impact of a right cannot be reason to restrict it said as part of their destruction of Breyers - proposed balancing test. That leaves only intermediate scrutiny and strict scrutiny. Also the court has again affirmed that the second amendment is a "fundamental right" like other fundamental rights.

Even under intermediate scrutiny the may issue laws run afoul of equal protection. A cosmetic AW ban has no logical basis and both intermediate and strict scrutiny require a level of logic and real justifiable reason. Complete bans on both open and concealed carry would effectively write the word "bear" out of the amendment - and I don't see the court suddenly changing direction to go that way. Current shall issue laws will probably in the main be upheld as will restrictions on carrying in schools, certain government buildings, and sensitive places.

Given the courts empahsis on "common use" and self-defense it is probable that will uphold restrictions on (functionally different) machine guns not on mere cosmetics.

Therefore:

1. unconsititutional - one can't abitrarily restrict a fundamental right for "cosmetic" i.e. no good reason.

2. yes within limits - as stated above - but no total bans on both open and concealed carry.

3. Registration has probably always been constitutional - as militia were required to have arms and at times appear with them - though this will continue to be fought tooth and nail through the legislative/political process in most of the country. However a registration scheme like Chicago's that put real barriers to gun ownership and real restrictions would fail.
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Old June 28, 2010, 04:38 PM   #3
Wildalaska
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A cosmetic AW ban has no logical basis and both intermediate and strict scrutiny require a level of logic and real justifiable reason.
Really? you cant think of any logical reason for cosmetic bans?

How about the arguments used to justify the bans in the first place?

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Old June 28, 2010, 04:48 PM   #4
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Today's decision is a start, but my prediction is that it will take 20-30 more years of effort and litigation over what constitutes "reasonable restrictions" to try to roll back the damage to our rights that has already been done.

Also, while we have won one more battle, the war is far from over. To quote Winston Churchill, "It is not the beginning of the end, but, perhaps, it is the end of the beginning."

Also, we need to be even more watchful now, since we can expect some real counter-attacks from the left. Also, never kid yourself that these laws have anything to do with reducing crime, except as rhetoric to fool the foolish. Historically, weapons laws have always been about extending the control of some elite over a peasantry, for the fun and profit of that elite. It was true during the Tokagawa Shogunate in Japan, when only Samurai could own swords. It was true in the post-Civil War South, when gun laws were passed to make sure that ex-slaves would be defenseless when the Klan came to call. It was true in Great Britain when the National Firearms Act of 1920 was passed as a crime control measue, but really out of fear of a Bolshevik-style revolution in the aftermath of WW I. It was true in NYC, when the Sullivan Law was used to ensure that only Tammany Hall thugs had guns on election day. The examples could continue almost indefinitely.
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Old June 28, 2010, 05:19 PM   #5
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Quote:
1. AWBs on magazine size, cosmetic features...constitutional
Possibly, it depends on the specifics of the ban. Remember, not all AWB's are uniform and some are more draconian than others. If we're talking about something like the '94 Federal Ban then I would probably agree that, as much as I wouldn't like it, it would probably pass constitutional muster at least with the current court although I could see magazine capacity restrictions possibly being a sticking point. However, were there a ban on, say, all firearms with detatchable magazines or all semi-automatic firearms then I don't think it could get by SCOTUS.

Quote:
2. Limitations on open and concealed carry...constitutional.
Again it depends on the limitations. A shall-issue licensing system for open, concealed, or both would, I have no doubt, pass constitutional muster. However, I don't think that a no-issue or may-issue system for both types would stand.

Quote:
3. Registration: constitutional
So long as it's a "shall-register" system for lack of a better term then yes. This one has really already been decided. Both Chicago and D.C. had registration procedures already in place, they just refused to register anything. So long as the registering organization is legally bound to register a gun to anyone who meets the legal requirements and pays any associated fees then I believe registration would probably be found constitutional by the current court.

As always, the devil is in the details. An overly onerous or prohibitively expensive CCW or Registration process could possibly run afoul of SCOTUS. Likewise, being forced to give up other civil rights, such as being forced to submit to random police "inspections" due to having a CCL or registered gun might also be found unconstitutional.
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Old June 28, 2010, 06:33 PM   #6
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To Wild's points, the Brady Campaign is already crowing how they won McDonald in so much as the Supreme Court has decided that reasonable regulations are constitutional.

After clearly losing the 2nd Amendment battle, the anti-gunners will push virtually any "reasonable" regulation that will make it difficult to access your 2nd Amendment rights including those that Wild has already listed with I'm sure many more to follow.
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Old June 28, 2010, 07:02 PM   #7
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My understanding is that McDonald only guarantees that no jurisdiction could flat out ban guns, like Chicago, NYC and other cities. But it doesn't forbid laws regarding magazine caps, CCW and class 2 restrictions. Am I wrong to think that?
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Old June 28, 2010, 07:17 PM   #8
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No comestic AW ban stands up under any level of scrutiny from the court except rational basis and that has been taken off the table if you read the decisions - both in Heller and then McDonald.

That some kind of carry either open or concealed will be protected and that one or the other must be available seems fairly apparent from the court specifying in their opinion that it would still be constitiutional to ban carry of arms in government buildings, schools, and sensitive places. If the court intended to support general bans on the carrying or bearing of arms outside the home it is highly doubtful that they would have made a point of being so specific about where it would still be permissable.

As to banning all but a subset of handguns - i.e. banning all semi-automatics or only allowing guns on a limited approved list - that will also fail - the USSC was clear in the Heller majority decision that they found it laughable that DC could ban handguns since people could own longguns - the same principal applied in McDonald - now they are somehow going to suddenly accept bans on all sorts of individual types of firearms based on a government approved list. So if I have a firearm but it isn't on the list I can't register it or have it or keep it? No, the court took pains in Heller to note that firearms commonly owned and used were protected - semi-autos have been around over 100 years and they are not going to let the government infringe arbitrarily the RKBA - so that every state city has some sort of approved gun list.

But what you or I believe really doesn't matter cause the courts are already in the process of answering the carry and approved gun list questions. The court in California has two cases (one dealing with shall issue vs may issue and one dealing with the approved gun list or roster) on hold - as they were waiting on the outcome of the McDonald case. Those will go forward now. Also there are two similar cases in DC dealing with similar issues. So we shall see shortly.
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Old June 28, 2010, 07:31 PM   #9
Wildalaska
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Quote:
No comestic AW ban stands up under any level of scrutiny from the court except rational basis and that has been taken off the table if you read the decisions - both in Heller and then McDonald.
Again, I disagree. Even under strict scrutiny a cosmetic AWB would stand.

So tell me how no bayonet lug, no pistol grip, no folders and no flashider would affect your right to self defense?

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Old June 28, 2010, 07:51 PM   #10
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Kreyzhorse and Thomme - the court only decided the question in front of it - the USSC - particularily this courts majority - do not decide issues not brought up before it - they do provide in their opinion the basis for why they reached that decision and that it turn often provides a rough roadmap for how they may decide future cases involving that issue or right.

The Brady Campaign is spinning this as much as they can - so they say that the court endorse some reasonable restrictions and then trot out a list of everything that they (the Brady Campaign) think is reasonable - which is pretty much any an all gun control short of a ban on all handguns - and the only leave the handgun ban out because the court just squashed that specifically.

What they leave out is the details of the decision and the words used by the majority - the majority specifically identified as constitutional - gun control that bans the carrying or bearing of arms in government buildings, schools, and sensitive places - they also said that gun control might legitimately have some say over what was carried and where and when it was carried - they did not endorse a total ban on all carrying. And in Heller which they endorsed again in McDonald they stated that a so called balance test for the application of the right to keep and bear was out - that rules out rational basis - meaning that either intermediate or strict scrutiny apply - they also endorsed the idea the arms in common use were protected (semi-autos and so called AW's are in common use without a doubt). Therefore, under either intermediate or strict scrutiny the government carries the burden of proving a real tangible benefit and a real reason for some restriction or ban - they can't just say like under rational basis - well we did this for this reason and because that is a good reason in and by itself that is enough. Also the court in its decision emphasized that the 2nd amendment protected a fundamental individual right similar to other fundamental rights in the Bill of Rights - like the first amendment like the freedom to worship.

So, yes the Brady Campaign is spinning this like crazy and yes some people even on gun boards are buying it, and perhaps some gun owners are even scared that the court may have endorsed too much freedom and they don't like the idea that AWs or carry laws will be shall issue. But from now on the presumption is - that the right to keep and bear arms is an individual fundamental right and that the government must now show that any gun control law they propose does not unduly or unnecessarily infringe on that right and that that law actually serves a very real and demonstrable purpose.

But as I said above - no need to speculate really - as we type and speak the cases are already in the courts and more will follow. This isn't the end of litigation - it is just the beginning.
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Old June 28, 2010, 07:54 PM   #11
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Wild - you have it upside down - the court has stated it is a fundamental individual right - it isn't the people that need to show a need - in such a case it is the government that must make the case that banning cosmetics serves a compelling governemnt interest.


edit to add - as an example - I own a gun with a bayonet lug and a flash hider and a pistol grip - the government passes a law that says I can't own it - it is therefore up to the government to show or make the case that those things somehow add up to a legitimate reason to deprive me of my firearm and to infringe my RKBA.
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Old June 28, 2010, 07:55 PM   #12
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"Again, I disagree. Even under strict scrutiny a cosmetic AWB would stand.

So tell me how no bayonet lug, no pistol grip, no folders and no flashider would affect your right to self defense? "

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Under strict scrutiny, I don't have to tell you how no bayonet lug, pistol grip, folders or flashiders affect my right to self defense. It's up to you to tell me how they don't.
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Old June 28, 2010, 08:30 PM   #13
Wildalaska
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Quote:
in such a case it is the government that must make the case that banning cosmetics serves a compelling governemnt interest.
Quote:
Under strict scrutiny, I don't have to tell you how no bayonet lug, pistol grip, folders or flashiders affect my right to self defense. It's up to you to tell me how they don't.
Guys guys guys, leave your prejudices aside here. One must ANTICIPATE the other sides arguments. I am here alleging that a cosmetic AWB would survive strict scrutiny.

But nobody can tell me why I am alleging that? What facts could be used to justify it? Or the IMPACT such a ban would have on your right to self defense?

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Old June 28, 2010, 08:45 PM   #14
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Originally Posted by Wildalaska
Again, I disagree. Even under strict scrutiny a cosmetic AWB would stand.
Ken, what about the "in common use" standard? If AR-15s are the best selling rifle in the US, then how can Congress ban them? I am taking my que from Justice Breyer who wrote about his problem with "in common use" in his dissent of Heller

Quote:
Originally Posted by Justice Breyer
On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so.
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Old June 28, 2010, 09:21 PM   #15
Glenn E. Meyer
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The problems with a cosmetic AWB are well known by the researchers on the impact of gun control law.

If another was to be passed, it would ban semis. Would that pass constitutional muster?

Are current mag limits still constitutional, it would seem to me that one could argiue that the majority of self-defense usages would not support more than 10 rounds. So would mag bans be OK?
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Old June 28, 2010, 09:43 PM   #16
Rotnguns
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Quote:
Guys guys guys, leave your prejudices aside here. One must ANTICIPATE the other sides arguments. I am here alleging that a cosmetic AWB would survive strict scrutiny.

But nobody can tell me why I am alleging that? What facts could be used to justify it? Or the IMPACT such a ban would have on your right to self defense?
I'm not trying to be rude or argumentative. I feel that Alito's use of the term "fundamental" implies strict scrutiny. In my humble nonlawyer interpretation, strict scrutiny means that absent a clear and compelling case, a right cannot be restricted. For example, the state of Idaho cannot tell me that I cannot own a yellow car unless a very strong case can be made that the color yellow provides a clear and present danger to society, overwhelming my personal right. It's up to the state to prove the case, not me.
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Old June 28, 2010, 10:03 PM   #17
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Quote:
the majority of self-defense usages
If I am limited to something that fits the MAJORITY of situations my right has certainly been infringed. There is obviously a minority of situations in which my right is not full and has thus been infringed.

I agree this was more of a ideological victory than a concrete one. It will take a decade or more for the courts to sort out exactly what this means.

On the other hand, I partook in the facebook discussion on the NPR page concerning the decision. I was amazed that at least half of NPR followers commenting seemed to be pro-gun. Some that were in the middle seemed to have a "give it up" attitude towards the anti-gun folks. I think we gained a concrete victory in publicly legitimizing our stance. many of the "sheeple" will side with us as the court has told them to
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Old June 28, 2010, 10:26 PM   #18
mack59
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Well, since you evidently possess the answers, please enlighten us poor stupid boobs.

I only based my anwers on the text of the Heller and McDonald decisions; the definitions of rational basis, intermediate scrutiny, and strict scrutiny; the courts history in dealing with fundamental rights; and the opinions of rubes like Gura.

Of course then again we will know the answers within the next 12 to 24 months.
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Old June 28, 2010, 10:29 PM   #19
Wildalaska
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Quote:
If another was to be passed, it would ban semis. Would that pass constitutional muster?
Maybe. Does adduced proof of dangerousness overide the "fundamental" right?

Quote:
It's up to the state to prove the case, not me.
Actually its not. You have the burden, not the state. Elementary civil procedure.

Quote:
If AR-15s are the best selling rifle in the US, then how can Congress ban them?

Is an AR-15 without a lug and flashider still an AR?

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Old June 28, 2010, 10:32 PM   #20
Wildalaska
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Well, since you evidently possess the answers, please enlighten us poor stupid boobs.
Im trying. Are we angry about something btw?

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Old June 28, 2010, 10:42 PM   #21
Wildalaska
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Lemme give a hypothetical to you guys....

Lets say that......hmmmm...OK...Arizona passes a law that requires the licensing of all owners and registration of all firearms in every county that borders Mexico, and makes the possession of an unregistered firearm a 15 year mandatory felony. Licenses are shall issue upon proof you are a US citizen or PRA....

Constitutional under the 2nd am?

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Old June 28, 2010, 10:44 PM   #22
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I think the difficulty in each of these cases is going to be finding a case which will make it to the SCOTUS for a decision.

Assuming a case arises in which the party(s) on the offensive against each of these scenarios actually makes it through the maze of restrictions to SCOTUS...

1. AWB..since AR15 in particular are commonly used in both rifle competitions and by law enforcement, I believe certain parts of any AWB could be struck down on grounds that they are in fact in common use for lawful purposes.

2. I agree that CCW and open carry prohibitions at the state level would be constitutional. I question whether 'may issue' is constitutional without very specific criteria but this from an equal protection standpoint and not so much 2nd.

3. Registration constitutional as long as the wait and the fees are not an attempt to deny the right. For instance NY taking 18 months and charging $500+, I believe that could be ruled a 'poll tax' used to deny the right based on economic conditions.

Just my $.02
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Old June 28, 2010, 10:56 PM   #23
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How many have actually read the decisions?

The ruling doesn't expand on the protection provided by the Heller ruling, it only extends it to apply to state & local law.

And Heller provides only the most basic protection against gun control. That is, it says that completely prohibiting the ownership/possession of an entire general class of firearms (handguns) commonly used in self-defense by the citizenry is unconstitutional.

In order to make Heller apply then, it would seem that 3 criteria must be met.

1. An entire general class of firearms must be involved.
2. That entire general class of firearms must be of a type commonly used in self-defense by the citizenry.
3. There must be a complete prohibition on the ownership/possession of the entire general class.

Even if we completely ignore the first two criteria it's still obvious that an AWB of the same general flavor as the one we went through in the 1990s is not going to qualify. Under that law one could still own/possess full-fledged AWs, they just had to be AW's that were manufactured/sold/imported before a certain date.

So an AWB with any grandfather provisions won't bring Heller or McDonald into play.

So let's say they don't put in the grandfather provisions?

Let's look at criterion 1.

It's not hard to make the point that AWs are not a general class of firearms in the same sense that handguns are. Handguns are any firearm regardless of caliber, capacity, primer type or action type that are designed to be easily fired with one hand.

AWs (per the AWB) are a specific subclass of magazine fed semi-automatic rifles which is a subclass of semi-automatic rifles which is a subclass of repeating rifles which is a subclass of centerfire rifles which is a subclass of rifles which is a subclass of long guns.

But let's say that all the justices have a simultaneous minor stroke that day and agree that AWs constitute a general class in the same sense that handguns are a general class.

That still leaves criterion 2.

Are AWs a class of firearms commonly used for self-defense by citizens? Not according to any statistics I've seen. Handguns and shotguns dominate the world of dedicated self/home defense firearms with firearms of opportunity (hunting/recreational guns) filling in the rest. AW's are rarely used for self-defense by citizens.

Heller isn't going to help prevent an AWB and therefore neither will McDonald.
Quote:
...since AR15 in particular are commonly used in both rifle competitions and by law enforcement
Neither Heller nor McDonald so much as mention LE or competition uses. They are focused specifically on self-defense use by the citizenry.
Quote:
I question whether 'may issue' is constitutional...
Heller was specifically about handguns for use in home defense. That was what the plaintiff asked for and that's what he got. There's nothing in the ruling that applies to carry outside the home.

It's a tremendous stretch to try to make Heller apply to any sort of CCW permit restrictions, even the complete absence of any legal provision for CCW.
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Old June 28, 2010, 11:00 PM   #24
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"Maybe. Does adduced proof of dangerousness overide the "fundamental" right?"

Reading the text of McDonald - according to the majority - their answer is no it does not.

"Actually its not. You have the burden, not the state. Elementary civil procedure"

Actually in cases dealing with fundamental rights the burden of proof is on the government.

"Is an AR-15 without a lug and flashider still an AR?"

I don't know - what would a patent attorney say?
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Old June 28, 2010, 11:04 PM   #25
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Quote:
Quote:
It's up to the state to prove the case, not me.

Actually its not. You have the burden, not the state. Elementary civil procedure.
This is not at all a case of elementary civil procedure. Consider this very instructive discourse on substantive due process, particularly applied to the 14th amendment:

http://nationalparalegal.edu/conLawC...ntalRights.asp
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