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Old September 10, 2010, 10:57 PM   #26
Al Norris
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Crosshair, my point was simply that it took a constitutional amendment to ban alcohol. In doing so, the Congress never prohibited possession, and conversely, the Congress didn't call it a right like they did in the 26th amendment.

I also think most of us plebes would consider the commerce clause interpreted so broadly that there are very few, if any, restrictions left.
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Old September 11, 2010, 10:09 AM   #27
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Crosshair, my point was simply that it took a constitutional amendment to ban alcohol. In doing so, the Congress never prohibited possession, and conversely, the Congress didn't call it a right like they did in the 26th amendment.
OK, I was thinking about the 2st amendment and you're talking about the 18th.

Quote:
I also think most of us plebes would consider the commerce clause interpreted so broadly that there are very few, if any, restrictions left.
So true and good to see the states starting to fight back.
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Old September 12, 2010, 09:59 PM   #28
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What this will come down to

Look guys there are a couple different ways this can go down.
1.) What alot of you fellas are critical of is the age (young enough to die for your country...etc.) That is a loser. What you would be doing there is attacking the law as denying equal protection under the laws due to the age of the plaintiff (being 18-20). That's going to probably lose. Hard. All the gov. has to prove is a rational basis for the law.....and that basis can be very, very, very, loosely tied to the law.

Which is why the NRA has waited until now....when the Supreme Court has ruled the right to bear arms a fundamental right THAT APPLIES TO THE STATES (through the 14th amendment). Leading us to:
2.) Fundamental right (and this is how plaintiff is doing it) Uncle Sam is going to have to prove 2 things:
A.) Narrowly tailored legislation tied directly to
B.) a compelling state interest.
Basically, Uncle Sam has to prove an exceptionally good reason for the law, and must show their is no real better way of accomplishing that goal.
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Old September 12, 2010, 11:23 PM   #29
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Patches, you're assuming that the court will rule that strict scrutiny applies.

And what of the other suit? The one against the Texas CCW age?

For this strategy to work, both suits must be won.
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Old September 13, 2010, 01:54 PM   #30
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Correct, I am assuming the court will rule that strict scrutiny will apply. I think they will, this has been adjudicated to be a fundamental right applicable to the states through the 14th Amendment. Making an equal protection argument, without arguing a fundamental right turns this case into a loser.

The CCW law would probably be tied in with this case. I don't see how one could not influence the other.
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Old September 13, 2010, 02:08 PM   #31
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Not meaning to change the subject, but is this law suit really the efforts of the NRA or are they claiming credit for someone else's work?
Apparently, the NRA has, disturbingly, been accused of doing just that, with recent legal victories that others initiated, paid for, conducted and won.
Anyone know?
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Old September 13, 2010, 05:40 PM   #32
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Patches, you're assuming that the court will rule that strict scrutiny applies.
It's an equal protection case involving a "fundamental" enumerated right. It'd be hard to get around that.

In Boston or Baltimore, maybe. In Lubbock, I think we stand a good chance. Furthermore, the other side has to articulate an "important" government interest at the very least. What government interest is served by denying 2nd Amendment rights to 18-20 year olds?

While the other side could trot out selective mortality tables to show that folks in that age range die at higher rates than other ranges, the range in question usually covers up to age 25. Basically, I'm more likely to get shot at 18 than I am at 40, but I'm still more likely to get shot at 22 than I am at 40.

Quote:
Not meaning to change the subject, but is this law suit really the efforts of the NRA or are they claiming credit for someone else's work?
And we're off the reservation. Bonus points for attempted subtlety, however.

D'Cruz v. BATFE is being argued by attorneys from Cooper & Kirk, who are regular litigants for the NRA.
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Old September 14, 2010, 06:06 AM   #33
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Yet we let them own shotguns and rifles at 18 and drive at 16 in many places.
Those are the most important points to me. Teens are a lot more likely to kill the rest of us using their cars than their guns, but the real question that needs to be asked is:

If they can outlaw transfers of handguns to 18-20 year olds, why not other guns?
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Old September 14, 2010, 10:34 AM   #34
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Double edged sword. The irresponsibility of young drivers is well known. So how does that help the gun argument? Maybe we should take away their cars? It's been argued.

Also, one can argue that rifles and shotguns are more important in a sporting paradigm. That is not a major reason for handguns (yes, folks do handgun hunt).

Be careful with this sort of argument. If it is that they misgbehave with Y so they should have X to misbehave with, that is not a winning argument.
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Old September 14, 2010, 10:57 AM   #35
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What government interest is served by denying 2nd Amendment rights to 18-20 year olds?
Good point. The age restriction of 21 years or older is one of the last vestiges of the statutory requirement of 21 to vote or be legally considered an adult. In the military, 18-yr olds and even 17-yr olds are routinely issued handguns and expected to use them.

True, teenage drivers are responsible for a hugely disproportionate number of traffic accidents, and the drinking age was raised to 21 after the number of accidents spiked when it was lowered to 18. But, neither driving nor drinking are Constitutional rights. The case is a slam-dunk.
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Old September 14, 2010, 11:07 AM   #36
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Double edged sword. The irresponsibility of young drivers is well known. So how does that help the gun argument? Maybe we should take away their cars? It's been argued.
Actually, a ten-year-old can buy a car if they want. I don't know who would sell it to them, but there are no laws that I know of that forbid it. Now, getting a license isn't usually allowed until age 16, but then again, cars (and driving) do not enjoy specific constitutional protections. Arms do.

Quote:
Also, one can argue that rifles and shotguns are more important in a sporting paradigm. That is not a major reason for handguns (yes, folks do handgun hunt).
Here's the thing. Heller mainly covered the right to own a handgun for the purposes of self-defense. It can be read (as the 7th Circuit did in Skoien) that such is the central right protected by the 2nd Amendment, and that "hunting" and "sporting" are not as sternly protected.

As such, we're back to the question of a unique and arbitrary restriction on what is considered a fundamental right: owning a handgun.
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Old September 14, 2010, 01:57 PM   #37
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The key anti argument is when does the irresponsibility of youth necessitate a reasonable restriction.

That's what they would say. The core of the argument is the discrepancy between 18 and 21 for different things that these age cohorts do and/or have rights to do.
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Old September 14, 2010, 03:15 PM   #38
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saying that an adult citizen is not responsible enough to buy a pistol, because of their age is stereotyping. Just because someone is young does not mean that the individual is irresponsible. If almost any other group was discriminated against, such as not being able to purchase a handgun because of your gender, race, or religion, this law would have been overturned long ago.
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Old September 14, 2010, 03:46 PM   #39
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When are you an adult?

18 or 21

Guns vs. liquor vs. driving? Voting, marrying, age of consent?

Life is complicated.
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Old September 14, 2010, 04:58 PM   #40
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The age restriction is not reasonable.

Citizens are either adult at 18 or they are not. If they are not, they cannot be criminally charged as an adult; They can not contract; They can not marry; They can not be sent into a combat zone; They can not be drafted, etc. And we would have to change the Constitution to take away voting rights - The Court cannot do this.

If this age group are adults, there are no compelling arguments to maintain a handgun prohibition when allowing other, more powerful firearms (meaning the law is not narrowly tailored to fit the reasons). Remember, the federal law does not prohibit the ownership, it just prohibits an FFL from selling a specific firearm to anyone in this age bracket. The Heller Court has already listed the prohibited item as the quintessential tool, preferred by the public, for self-defense.

The only arguments against, are arguments of emotion, not fact.
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Old September 14, 2010, 05:28 PM   #41
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Originally Posted by The Moderator Formerly Known As Antipitas
Remember, the federal law does not prohibit the ownership, it just prohibits an FFL from selling a specific firearm to anyone in this age bracket. The Heller Court has already listed the prohibited item as the quintessential tool, preferred by the public, for self-defense.

That's a slam dunk argument, right there, IMO. There is no rationale basis for that regulation. You can own it and use it but only purchase it from certain people? You can buy other, much more powerful weapons, from these same people but the little bitty ones that you can hide, those you can only get from unlicensed individuals?

Total nonsense. Put together with the fact that those 18-20 are allowed EVERY SINGLE other fundamental right and you're left, I think, with a very easy argument.
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Old September 14, 2010, 08:50 PM   #42
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Originally Posted by The Moderator Formerly Known As Antipitas
Is this your not so subtle way of saying you don't like my real name??
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Old September 14, 2010, 09:06 PM   #43
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Citizens are either adult at 18 or they are not. If they are not, they cannot be criminally charged as an adult; They can not contract; They can not marry; They can not be sent into a combat zone; They can not be drafted, etc. And we would have to change the Constitution to take away voting rights - The Court cannot do this.
Good point. Really good point.

Getting the RKBA defined as "fundamental" in McDonald is what will make that comparison valid in the eyes of the courts.

Quote:
Is this your not so subtle way of saying you don't like my real name??
I think it makes you sound like the long-lost brother of Chuck Norris.
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Old September 14, 2010, 10:51 PM   #44
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Carlos Ray "Chuck" Norris is of Irish (paternal) and Cherokee (maternal) descent. Mine is Welsh (paternal) and German Jew (maternal). If there is any relation, it is very, very distant.
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Old September 15, 2010, 08:00 AM   #45
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When are you an adult?

18 or 21

Guns vs. liquor vs. driving? Voting, marrying, age of consent?

Life is complicated.
If you murder someone at the age of 18 years plus one day, the courts will see a difference versus murdering someone at the age of 17 years, 364 days. Same if you sign a contract, have an auto accident, get drunk in public, or try to vote.

There is no specifically protected right to drink or to drive on the roads, and I was driving around our farm at about 13.
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Old September 15, 2010, 11:58 AM   #46
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Originally Posted by Al Norris
Is this your not so subtle way of saying you don't like my real name??

Nah, you just remind me of Prince, that's all.
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Old September 15, 2010, 12:48 PM   #47
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What you would be doing there is attacking the law as denying equal protection under the laws due to the age of the plaintiff (being 18-20). That's going to probably lose. Hard. All the gov. has to prove is a rational basis for the law.....and that basis can be very, very, very, loosely tied to the law.
If we know that anything is off the table for 2A protection for adults, it is the rational basis test.
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Old September 30, 2011, 09:35 PM   #48
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This thread is slightly over a year old and we have the results of one case in.

Yesterday, in Jennings (was D'Cruz) v. BATF&E, Judge Samuel Cummings denied Jennings MSJ and the .Gov MTD but granted the .Gov MSJ. You can read it here.

On the second amendment question, Judge Cummings quoted and highlighted this passage from Heller:

Quote:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
He then concludes with this:

Quote:
Considering Heller’s specific exception of conditions and qualifications on the commercial sale of arms from the individual right to keep and bear arms, along with the Fifth Circuit’s treatment of the distinction between possession and dealing of firearms and its exempting young persons from Second Amendment guarantees, the Court is of the opinion that the ban does not run afoul of the Second Amendment to the Constitution. ...

... In essence, it is within the purview of Congress, not the courts, to weigh the relative policy considerations and to make decisions as to the age of the customer to whom those licensed by the federal government may sell handguns and handgun ammunition.
So if the Congress decides that you are too young until you reach the age of, say, 50? then it is quite alright to deny a basic fundamental right. Until you reach that age.

Of course in saying this, Judge Cummings completely ignores Ezell. If in Ezell, the 7th Circuit held that training at a firing range was a corollary right and a ban of firing ranges thus merited "almost strict" scrutiny, then the ability to purchase a handgun for self defense ("in the home"), is also a corollary right and a ban on the purchase of the tool that makes self defense possible, also merits the same scrutiny.

The above logic is inescapable.

This is a case of first impression and Judge Cummings has just signaled that he is too afraid to touch it. Despite having a wide latitude to do just that. So he falls back to the 2A Two-Step.

As for the Equal Protection claim, Judge Cummings dismisses it with rational basis scrutiny (at least he is honest enough to directly say this), because the 2A claim has no merit.
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Old September 30, 2011, 09:59 PM   #49
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Bonus points for attempted subtlety, however
Wonderful!
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Old October 2, 2011, 09:47 PM   #50
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While I understand that the Judge's decision references the power of the state to regulate "commercial sale of arms" as set out in Heller. I do wonder the logic of how that interest - in this case - out weighs the constitutional protections for individuals. To me this decision is odd and unexpected. It's also possible that this decision will spawn new regulatory ideas from the Brady ilk.

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