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Old September 9, 2012, 11:56 AM   #31
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Join Date: July 20, 2005
Location: Indiana
Posts: 10,167
Originally posted by Odd
That's very doubtful. The states have not been able to get around other Federal gun laws like the NFA, '68 GCA, or even the original '94 AWB, so I don't see how they could get around a new AWB unless that provision were specifically written in. As I recall, one of the western states tried this a few years ago by arguing that firearms made and sold entirely within their state were not subject to federal law, but I don't think it went anywhere. Were the AWB ressurected, about the only recourse I could see the states having in the matter would be to file suit and take it before the courts in hopes of having it declared unconstitutional just as they tried (and failed) recently with the Affordable Care Act (Obamacare).

What if: In an AWB being reinstated scenario, a state governor passes a law that has citizens send in an application to their local sheriff/PD for a permit that grants ownership of guns that fall under the AWB. The only requirements for a permit are basic ones required to purchase a longarm(background check, 18 years of age, etc). De jure, AWB guns are restricted to civilians(except permit holders), but de facto it's almost business as usual before the AWB.
I still don't see it because you'd basically have state law superceding federal law. The only way that such a state-level exemption could fly would be if it were either specifically written into the new AWB (not likely) or there were a specific Judicial precedent stating that, in this particular matter, state law supercedes federal law (there isn't).

I am aware of no case in which a less lenient state or local law supercedes federal law for some sort of "reverse preemption". I do know, however, of several cases in which federal law is more restrictive than state law and thus supercedes it. For example, in my home state of Indiana, the minimum age to obtain a License to Carry a Handgun is 18 years old. That has been state law since, IIRC, the 1930's well before there were any federal minimum age requirements for handgun ownership or purchase. Federal law, however, dictates a minimum age of 21 years old to buy a handgun or handgun ammunition from an FFL, so while you may get your license to carry at 18 in Indiana, you still cannot buy the gun or ammo from an FFL for another three years.

Originally posted by Glenn E. Meyer
A new AWB, which I gravely doubt would be passed - I have a bet on this with a conservative buddy - could face constitutional challenge.

However, it would come up against the Heller view of reasonable restriction.

Are the semi auto military derivative guns so inherently dangerous that they could be reasonably restricted?

We might argue that they have utility for sport but is the risk (in rampages, organized gangs, etc.) too great? After all, most all hunting purposes can be handled by single shot Ruger Model 1s or a bolt gun. Carbine matches (which I love) aren't worth the risk.
Another avenue of attack against a new AWB would be to point out that, while mass shootings like the Colorado Theater incident garner headlines and lots of attention, "assault weapons" as currently defined are actually used in an extremely small perecentage of crimes. As I recall, the majorities in both Heller and McDonald rejected the "public safety" argument as it applied in those cases, so if one could make the case that "assault weapons" do not represent a significant threat to public safety due to their low popularity for actual criminal use, the same majority of Heller and McDonald might be persuaded to rule against an AWB.

Originally posted by jmortimer
"...Heller view of reasonable restriction"
Really? Kagan, Sotomayor, Ginsberg, and Breyer are all on the record to go beyond what an AWB would call for. AWB would be mild in comparison to what they would do. We know for a fact what would happen if Kennedy were replaced by POTUS in second term.
Fortunately, Ginsburg, Breyer, and Sotomayor have been in the minority in recent 2A cases (Kagan has not ruled on any 2A cases yet), so we need only convince the justices that have already ruled in our favor. Also, the Justice most likely to be replaced next is Ginsburg due to her ill health, and she's ruled with the minority in both Heller and McDonald so replacing her with another anti-gun Justice wouldn't really change much. It is fairly common for SCOTUS Justices to wait to retire until the sitting president is likely to replace them with a Justice with similar views, so I very highly doubt that Roberts, Scalia, Kennedy, Alito, or Thomas is planning to retire while President Obama is still in office and, as far as I know, all five of them are in good health.
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