Chicago Gun Case Incorporation Lawsuit

[htjyang]

Now that I finally went over the transcript, I'm inclined to agree with Antipitas. I don't think the Court is as hostile to PoI as some people think it is. My suspicion is that too many people are influenced by Denniston's report. I actually think that oral argument for PoI was not particularly bad for Gura. One should not be surprised that the justices are reluctant about overturning a 140-year-old precedent.

Now, a few additional thoughts:

1. It seems to me that Gura and Clement have the most coherent responses. Feldman soon collapsed into incoherence and I had trouble trying to understand exactly what argument he was trying to present.

2. Justice Scalia's by now famous "darling of the professoriate" dig at Gura may be harsh, but I can't help but remember that Scalia himself was once a professor at the University of Chicago....

That aside, when Scalia brought up the Slaughterhouse cases' antiquity, Gura should've quoted a concurrence in Payne v. Tennessee: "[W]hat would enshrine power as the governing principle of this Court is the notion that an important constitutional decision with plainly inadequate rational support must be left in place for the sole reason that it once attracted five votes."

Author of the concurrence? A certain Justice Antonin Scalia.

3. The problems with Gura's argument are:

a) Gura can't distinguish between DP and PoI incorporation.

There is no way to square the circle. If Gura suggested that the 2 are substantially different, then there is no chance for the Court to declare that DP incorporation is wrong and threaten the incorporation of everything else. But if the 2 are substantially the same, then why bother with PoI since DP has already been done? This is the point that Justice Sotomayor (bottom of page 4) brought up and Justices Stevens, Scalia, Kennedy, and CJ Roberts followed up. Gura's response was that PoI is the more logical path in terms of text and history. Prof. Randy Barnett rightly noted that no one on the Court actually challenged that point. But the fact remains that being the more logical answer cannot be the only rationale the Court relies upon to overturn precedents of such antiquity. To do so, the Court usually needs to conclude that the result is wrong as well. Whatever one might think about DP incorporation, few would argue that incorporation itself is wrong. For Gura to argue that would be to destroy his own case.

b) The Pandora's box problem.

Gura tried to answer Justice Ginsburg's question about unenumerated rights (bottom of page 8). In doing so, he made the following (perhaps unavoidable) faux pas:

i. By admitting that he can't list all unenumerated rights, he only reinforced conservative concern that it may be abused.

ii. By naming the right to contract, he only reinforced liberal suspicion that this is a libertarian effort to bring back Lochner.

So with one response, Gura successfully antagonized everyone on the Court. Then there is:

c) It also becomes impossible to avoid the point #3 that Prof. Orin Kerr made: "To my mind, that’s one of the oddities of Gura’s originalist argument: It is 100% originalist but only 50% of the time."

To put it another way: Gura's argument is 100% originalist but his application is only 50% originalist. Not only does this reinforce the impression that Gura is on a libertarian crusade, it also creates a very bad impression, the impression that Gura is being disingenuous with his claim to originalism.

I'm sorry if this comes across as being very critical of Gura. I remain of the opinion that PoI incorporation is more logical and I doubt that any other PoI supporter could do better than he did. Gura's problem was that DP incorporation got there first. Gura tried to lessen the shock to the system by suggesting that the 2 can co-exist. But he also can't help but make the argument that PoI is superior. Otherwise, there would be no reason for the Court to even consider PoI. That in turn requires him to undermine DP and creates the possibility that DP incorporation may be undermined by his arguments.

4. I have to say that I'm very disappointed by Justice Breyer. Not only does he appear to be bitter about his defeat in Heller and is unwilling to accept the result, but he brought up the age-old tripe of crime statistics again. Contrast that with Justice Stevens. He was also on the side that lost in Heller but unlike Breyer, he moved on by attempting to limit the 2nd Amendment's reach with new arguments. It's curious that the older of the 2 justices seems to have the more active mind. I was glad to see Scalia intervene with the point about Miranda rights.

5. I think that the liberal attempt to weaken McDonald with the idea of partial incorporation to co-opt someone from the Heller majority probably failed. It also goes to show their disingenuousness. Can anyone imagine a liberal accepting partial incorporation of the 1st Amendment?

6. As for scrutiny, I doubt the Court will ever directly answer the question. I suspect that the Court will want to bifurcate the 2nd Amendment so that both strict and intermediate scrutiny apply. Some 2nd Amendment rights such as self-defense and arms like handguns will be protected by strict scrutiny. Others such as carry and silencers may be intermediate scrutiny. The problem about this approach is that I can't think of any constitutional justification for bifurcating an enumerated right like this and I doubt the Court can, either. Furthermore, enumerated rights enjoy strict scrutiny. That may explain why the Court during oral argument was searching for a justification to weaken the 2nd Amendment.

The situation is still reasonably favorable for gun owners since rational basis was ruled out in Heller. Intellectual honesty may push the Heller majority toward strict scrutiny while a desire to compromise with the minority and minimize disruptions to the status quo may point to intermediate scrutiny. So the Court may be conflicted about what the standard should be. The danger in pushing the Court too much is that they might end up with intermediate scrutiny instead. That will be unfortunate because in light of liberal recalcitrance, for conservatives to adopt intermediate scrutiny means that it is highly unlikely for a future Court to change its mind and adopt strict scrutiny instead. So, if the Court is not ready to declare strict scrutiny, letting it go with a de facto intermediate scrutiny without openly announcing the standard may be, for the moment, the best outcome. In the mean time, I think many restrictive gun laws can still be defeated by intermediate scrutiny. Gun rights supporters can preoccupy themselves by fighting those until there is a more favorable balance on the Court. At the danger of straying into a political discussion, I will just note that since Obama is likely to replace Justices Stevens and Ginsburg with liberals, those seats are beyond our reach for the next 20-30 years. Justices Scalia and Kennedy are almost 74 now. After those 2 liberals are replaced, they are the ones most likely to retire.

In conclusion, I'm not as pessimistic about the PoI argument as Ilya Shapiro, Clark Neily, and Roger Pilon. Gura's concluding response, by anchoring PoI in its text and historical background, may lessen conservative concerns about its abuse, as did Gura's failure to distinguish DP and PoI in their application. I don't know whether liberals will join PoI incorporation. (Judging from the NAACP brief, I'm inclined to doubt it.) However, I can think up of a way for Justice Thomas to force it on the majority. If liberals reject incorporation, (They can do so by continuing to tether the 2nd Amendment to the Militia Clause, which Breyer tried to bring back.) then incorporation will only win by 5-4. If Justice Thomas insists that he will not sign onto any opinion that does not include PoI incorporation, then the majority will be splintered. In this scenario, the Chief Justice may decide to include PoI along with DP for the sake of a unified majority. Jan Crawford Greenburg's book on the Court revealed that Thomas can be very forceful during the justices' private conference and that he sometimes succeeded in pulling other conservatives to his side so I think my hypothetical scenario still has a chance of coming true.

[Al Norris]

Originally Posted by Webleymkv

What I can see happening is Illinois becoming a "may issue" state like California or New York. I can see Chicago and other liberal districts putting up enough of a fight to kill "shall issue" but I can see them letting "may issue" get through as that would allow them to continue their draconian ways within their own districts without such great risk of leaving them vulnerable for another lawsuit.

I disagree. "May Issue" has a big problem with the Equal Protection clause of the 14th. It is, in every law I've read, arbitrary and capricious. It will be struck down.

I can see that "Shall Issue" CC will be held lawful, as long as OC is available, if the standards for CC are considered onerous. Otherwise, I see that OC may be regulated if CC is reasonably cheap and available.

None of this will affect States that already have unregulated OC and regulated CC.

[maestro pistolero]

With regards to the issue of carry, I kind of doubt that the court will say much one way or the other.

They did, at least, reiterate that bear means carry, as they did in Heller. It's not part of the ruling, but every time it is used in the conventionally understood way, it is reinforced in the record.

Post incorporation, NY laws have a big 'ole can of whoop-ass waiting for them. There is presently no path for an out-of-state resident to even be in possession of a handgun (even unloaded and in a locked container), as a pistol permit is required for mere possession, and will not be issued to anyone from another state. That is an effective ban for anyone not from NY.

[Tom Servo]

The quote above is from Roberts separate concurrence in Citizens United. In fact, his entire concurrence, in that case, was to fully justify when and where stare decisis should not hold. (...) Either the Chief Justice is a fraud, or he has very clearly laid the groundwork for a decision in McDonald.

Thanks for talking me off the roof

I was very fond of both Roberts' words and sentiments in Citizens United:

At the same time, stare decisis is neither an “inexorable command,” nor “a mechanical formula of adherence to the latest decision,” especially in constitutional cases. If it were, segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants. Roberts' concurrence, citations omitted, p. 6

After that, I was very surprised to see his reluctance to consider overturning Slaughterhouse. But you may be on to something.

Many have commented upon Justice Scalias opening remarks to Gura. I suggest that this was well prepared snark. Those of us that watch/read the Court, are well acquainted with his (dry) sense of humor. This too has been passed over by most in the media and blogsphere.

We don't have audio. We only have text. As anyone who's been on the internet for awhile knows, text doesn't do a good job of conveying humor or sarcasm, since we don't know tone of voice. Roberts and Scalia (and heck, Sotomayor) may have just been poking Gura. They could have been asking him to throw them a line.

(Of course, their rancor for Feldman's arguments came through loud and clear.)

In my case, I was disappointed not to see the orals focusing on PorI, but then again, the case won't be decided through orals. Heck, we're all just armchair-quarterbacking at this point, but if I had to lay odds, I'd say we're going to get incorporation through Due Process with a strict-intermediate level of scrutiny.

We'll have to wait and see.

[wally626]

I am certainly not a legal scholar, but my impression from orals was a 5-4 or 6-3 overturning Chicago's gun ban. Based on due process, even if a couple of them might be tempted to go P&I I don't think they have 5 votes to do it.

I think the decision is going to end up like Heller in that they will overturn Chicago but provide almost no guidance in regards to carry or the level of regulation other than possession permits being Shall Issue and that they include handguns.

There are some cases in the pipeline to address carry, so the lower courts may end up covering that.

I would love the courts to require Shall Issue for possession and carry of common weapons, like handguns, rifles shotguns. I think they will allow states and cities to regulate the ownership and carry as long as it does not get too restrictive. But issues like non-residents being able to get permits and things like that I am sure will be many years down the road if they ever get reviewed.

[Jim March]

There's a few solid predictions we can make about carry:

* Discriminating against residents of other states ENDS. Immediately. For example: you're from WA state, you have a UT permit which CO recognizes, except that when you go to CO you're screwed because CO only recognizes residency permits. BZZT. For another, California won't issue a CCW to an out-of-stater at all and recognizes no other state permits. So California residents have more carry rights access than out-of-staters. Oh HELL no. That collapses on a combination of 2nd Amendment and the Saenz v. Roe (1999) and Ward v. Maryland (1870) precedents. (Arguably that's the situation NOW but post-incorporation, there's not even a question.)

One more such example: I'm an AZ resident, my permit is no good in WA state for a single reason only: WA rules say 21+ for CCW, AZ is 18+. But I'm 43 and still discriminated against? Yeah, good luck with the federal civil rights suit on my part if I'm popped carrying in WA state.

* Loaded open carry must be made available as an alternative if CCW doesn't exist. And very likely, any COSTS associated with CCW would mean loaded open carry must be legal - that means Texas has to change (open carry is banned) but if for example Vermont or Alaska wanted to do concealed-carry-only, no open carry (say, in urban areas) they might be able to do so if their own state constitution will allow it.

In other words, shall-issue CCW will be an acceptable price to pay for a basic civil right only if the fee can be dodged with open carry.

* May-issue is dead, dead, dead. Period.

* Chicago's trick of automatic CCW with getting elected to high office is even deader.

* California's attempt to claim that UNLOADED open carry satisfies carry rights is toast.

[Webleymkv]

Quote:
Originally Posted by Webleymkv
What I can see happening is Illinois becoming a "may issue" state like California or New York. I can see Chicago and other liberal districts putting up enough of a fight to kill "shall issue" but I can see them letting "may issue" get through as that would allow them to continue their draconian ways within their own districts without such great risk of leaving them vulnerable for another lawsuit.

I disagree. "May Issue" has a big problem with the Equal Protection clause of the 14th. It is, in every law I've read, arbitrary and capricious. It will be struck down.

I was speaking more as to what I see happening within the politics of the state should SCOTUS leave the issue of carry alone. I still have a hard time seeing them addressing carry directly as they did not do so in Heller (to my knowledge, carry is still illegal in D.C.). I hope I'm wrong on this as it would be nice to have some sort of legal carry in all states, but I still have a hard time seeing that happen.

[gc70]

Originally posted by Musketeer
I would wager the level of scrutiny is completely absent when the decision comes down

The level of scrutiny will not be addressed.

CHIEF JUSTICE ROBERTS:
That still allows scope, once you determine that the right is incorporated, for recognizing that the States might have broader interests that the Federal Government doesn't have. But I would suppose that would come up in the application of the right, rather than in an effort to determine whether parts of it are incorporated or not.

McDonald is an incorporation case; the level of scrutiny is a question of application. Since the Court does not have to rule on the level of scrutiny, it will not.

McDonald provides the Court with no judicial record with respect to application. Before any of the facts of the case were argued in the District Court, the legal issues were narrowed to the incorporation question. The Court has nothing to work from in McDonald as a basis for approaching scrutiny, except on a theoretical basis.

The decision in McDonald will not address scrutiny and will remand to the District Court.

[BillCA]

After some sleep last night and this morning, I'm of the opinion that the Court will incorporate via DP and leave the level of scrutiny nebulous. They'll wait until appeals from cases decided under intermediate scrutiny conflict with some decided under strict scrutiny to settle the issue.

So far, we clearly have the "Keep" part of the right moving ahead. With incorporation, Chicago's ban will fall and they'll have to find a different way to harrass gun owners.

The upcoming Parker case in D.C. will argue that "bear" means to carry and D.C. law forbids it without paying for gov't permission to exercise the right. The question will devolve, I think, on whether the "carry" has legitimacy -- are you carrying it in order to transport it to the range, gunshop or exhibition or are you just carrying it around with you "just in case"? I think the circuit court will be less inclined to allow unrestricted carry. Fortunately, the 1st Appellate court is likely to push this (they seem to "get it" about the 2A rights).

A case in California (Skykes) takes aim at the state's "May Issue" CCW scheme. With incorporation, the state has to acknowledge the right to possess and the right to "bear". How far they will acknowledge "bear" is the question.

What is reasonable regulation on "bear"? Could a state require a "free" (very low cost) permit to open carry? Can they limit you to carrying only the guns listed on your permit? Can they limit the number on the permit to 2 or 3 guns?

Police groups will not be silent in this matter either. How will the court deal with the practical aspects of police interfacing with citizens who are armed? Lots of questions will be asked and attorneys should be ready with some answers.

[Al Norris]

Htjyang, thank you for that very good summary (both times, actually).

One point I would mention is that Sotomayor is still an unknown. If she can accept the premise behind Heller (and her questions to Gura and ridicule of Feldman could be indicative of this), then I think we have a chance for a 6-3 decision.

As htjyang has noted, Justice Thomas can be quite persuasive in conference. If he can convince the conservatives and even one or two liberals, that a vote for P or I would not lead to the chaos that they all can imagine, we may yet see a firm 2A incorporation that will be all but impossible to overturn. Should this be the case, Thomas will be writing the opinion.

Due Process incorporation is, of course, the odds on favorite. However I won't rule out P or I incorporation.

[Tom Servo]

The decision in McDonald will not address scrutiny and will remand to the District Court.

Well, the 7th Circuit came down on the side of strict scrutiny for the core "self-defense" part of the 2A and intermediate scrutiny for the rest (though this may change, as the case is being reheard). Other Circuits may choose to follow suit. If not, we'll have a circuit split and the goes to SCOTUS in a year or two.

We're still in the infancy of 2nd Amendment jurisprudence and the rules are being written as we watch.

[RDak]

Very interesting discussion.

One problem I'm having though is with the thought that scrutiny will not be discussed and/or ruled upon.

I do believe "bear" will be defined and I don't see how you can decide that issue without discussing scrutiny levels. Plus, as stated by other members, a framework for what States can or cannot do, relative to all US citizens, would seem to be something that should be decided.

Then again, if ONLY Heller is used as a template, then owning a handgun in the home for self-defense purposes could be as far as the SCOTUS goes.

I just didn't get that "flavor" of a narrow type of Heller review when reading the transcripts.

It would seem, at worst, the SCOTUS will at least comment on the level of scrutiny and provide a framework for future cases. At best, a level of scrutiny will be decided upon.

The Justices asked questions as to how much of the 2nd Amendment should be incorporated against the States. As a result, IMHO, they will address a level of scrutiny.

[Bartholomew Roberts]

Excellent summary by htjyang, though I remain less than optimistic about P&I for two reasons.

1. I've read several accounts from people who were present at the oral arguments and had a great deal invested in a P&I win. None of them had heard Denniston's comments yet and universally they all felt the tone of the orals signalled P&I was done.

2. Gura gave the best answer I've heard of to the Pandora's Box problem and the Justices clearly didn't like it as htjyang's excellent analysis points out why. How many rights are protected by P&I? They are unnumbered. Is a revival of Lochner one of them? Yes. What test can we use to determine rights protected by P&I? The same fundamental traditions test you already use for due process.

[Tennessee Gentleman]

Great discussion. I still think Due Process carries since it is the narrowest "safest" way. P&I could create a tabula rasa that could include a "right" to health care, sharing in company profits by employees, safety etc. Gura is a libertarian and so some think he is trying to get a bigger encilada than just 2A incorporation. I am not a libertarian so I don't care as long as we get incorporation.

As to carry, I don't think the court will address that will they? That is not the issue before them.

However, I can see "May Issue" surviving scrutiny if the state makes some "objective" standards which still make it very difficult to carry. I agree that states who flat forbid it would fail but as Webley said earlier that may be moot as only two states outright forbid CCW and that may change.

I do not see national reciprocity either and as I have stated before I don't like it anyway. I prefer the states working that out and I feel that over time that too may work out. There are way too many variances in CCW permit criteria between states and my thought would be to eventually work out a standard like the UCC that states would mostly accept. I don't see the courts getting into that one. My $.02.

[Stevie-Ray]

However, I can see "May Issue" surviving scrutiny if the state makes some "objective" standards which still make it very difficult to carry.

May issue is the same as never. The only ones that will carry are the friends of the sheriffs and the like. Believe me, they're doing that now, already. May issue is a total joke, always has been, always will be. We were may issue until just a scant few years ago. They might consider your application after a threat on your life was carried out to the fullest. But then you'd be dead and therefore save them the trouble of even going through the motions.

[Brian Pfleuger]

May issue is the same as never. The only ones that will carry are the friends of the sheriffs and the like. Believe me, they're doing that now, already. May issue is a total joke, always has been, always will be. We were may issue until just a scant few years ago. They might consider your application after a threat on your life was carried out to the fullest. But then you'd be dead and therefore save them the trouble of even going through the motions.

I'm no fan of "may issue" but you're over stating your case quite a bit there. NY state is may issue and the difficulty in obtaining a permit ranges from zero to extreme. Some places they hand them out like lollipops, other places it's no go.

Like I said, I'm not a fan but it's often a long ways from "never".

[Doc Intrepid]

The problem with 'may-issue' is that often, from jurisdiction to jurisdiction, "why not?" can become ambiguous...

Is someone gay? the wrong color? the wrong religion? the wrong socio-economic status? the wrong language?

It can be difficult to tell sometimes why some folks "may" carry, while others "may not".

In some jurisdictions, of course.....

[BillCA]

Originally Posted by peetzakilla

I'm no fan of "may issue" but you're over stating your case quite a bit there. NY state is may issue and the difficulty in obtaining a permit ranges from zero to extreme. Some places they hand them out like lollipops, other places it's no go.

Like I said, I'm not a fan but it's often a long ways from "never".

Come to Kalifornia, Pete. Last I looked, only .001% of the population was "allowed" to carry.

If the criteria for issuance is that you must be a member of a gov't agency or make significant contributions to the community (read as: the sheriff's reelection fund) there is no "equal protection".

A few CLEOs in rural California towns started issuing liberally, but the Sheriffs and legislature changed the law to make that more difficult.

[vranasaurus]

However, I can see "May Issue" surviving scrutiny if the state makes some "objective" standards which still make it very difficult to carry. I agree that states who flat forbid it would fail but as Webley said earlier that may be moot as only two states outright forbid CCW and that may change.

I don't think may issue will survive because the "may or may not" part could be based on just about anything. However states could adopt a shall issue that is based upon some very stringent criteria. That way the "objective criteria" would be the only thing that could get you denied and not what the issuing authority thinks. Either you meet X criteria or you don't. Now X criteria may only allow a small percentage of people to carry.

Now I don't believe that should survive scrutiny either but I think it would have a better chance than "may issue"

[Brian Pfleuger]

Originally Posted by BillCA

Come to Kalifornia, Pete. Last I looked, only .001% of the population was "allowed" to carry.

Oh, I know. Like I said, I'm not a fan, at all. I just wanted to point out that sometimes "may issue" is effectively "shall issue" and sometimes effectively "no issue" but a blanket statement either way is misleading.

[Tennessee Gentleman]

Originally Posted by BillCA

Come to Kalifornia, Pete. Last I looked, only .001% of the population was "allowed" to carry.

However, in Alabama and other may issue states it is not a problem. That is why I think it might survive if the state can show some objectivity.

Originally Posted by Stevie-Ray

May issue is the same as never.

Not true. See Alabama.

[htjyang]

As for the future after McDonald, we will spend decades litigating "bear" and "arms" just as we have spent decades litigating the 1st Amendment. Ilya Shapiro and Josh Blackman suggested that the courts may permit the states to ban either open or concealed carry, but not both. The courts may also permit registration, provided that it is shall-issue. I'm hoping that the courts will prevent states from imposing any kind of registration fee. The model here should be voting. If states can be prevented from collecting fees, that may discourage states from setting up a registry in the first place.

As for "arms", most handguns, rifles, and shotguns will probably be protected. The toughest ones will be weapons like machine guns and implements like silencers. Unless societal sentiment changes dramatically, don't expect much help from the courts.

Of the Heller restrictions (page 54), it's possible that in the future, the courts might loosen restrictions to allow non-violent felons to regain their firearm rights, though there still might be an application process. But this is probably in the distant future. As for "sensitive places," it's possible that restrictions like no gun zones that extend outside of a school's premises may be shot down. Eventually, the courts will have to articulate a standard regarding requirements on the purchase of firearms. I suspect a lot of the current restrictions will stay. Only until they significantly infringe upon the right to keep arms will the courts step in. The "common use" language is flexible enough to allow any number of interpretations and I consider it to be one of the strengths of the Heller opinion. The courts right now are not particularly favorable to gun rights. If they change to a more favorable composition in the future, then "common use" might be redefined more generously though I seriously doubt that the military and police will be counted among the gun-owning population for the purpose of defining that phrase.

One thing that I have been thinking about for some time is that gun owners should use veterans to advance their rights since veterans are among the most respected people in this country. (even the Supreme Court feels inclined to give veterans a break) Many of our servicemen in Iraq and Afghanistan come across antique or rare guns used by local insurgents that had to be destroyed. Perhaps the NRA can persuade Congress to allow our servicemen to bring back one weapon per person as personal trophies provided that they were seized from insurgents, would not be re-distributed to local security forces, and were scheduled to be destroyed? That may help increase the stock of "dangerous and unusual" weapons in the country thus making them more common and usual. Once they become common and usual, that will make it difficult for the states to ban or restrict their sale and carry.

[Tom Servo]

However, in Alabama and other may issue states it is not a problem.

It isn't yet, but it could be. "May issue" is a fragile concept, and one subject to political whims.

Of course, we'll need precedent that actually defines carrying arms as bearing arms and therefore subject to protection.

But we're getting there.

[mack59]

The veteran idea is novel and has potential, but the problems presently are the individuals in control of house, senate, and Whitehouse are not receptive and don't seem to have as high of an opinion of veterans - as in the Homeland Security brief that essentially identified vets as a potential high risk domestic terrorist group. Yes they got slammed for it and backed off some, but its kind of emblematic. Perhaps mid-term elections might present an opportunity. Good idea to explore though.

I think with the NFA the way to start is with SBR and such - there really is little logical reason to the restrictions especially when one considers the penalties that put people in prison on a felony for the length of a stock or barrel.

The next NFA item to attack should be "sound suppressors" - again there are a lot of common sense arguments to be made - people complain about ranges being loud in more urban areas, easily available suppressors would be a simple method for sound abatement. Also a health issue - hearing loss - health care (taking care of ones health not govt healthcare) is very popular. Also can be pointed out that in many of the "civilized" countries of Europe sound suppressors are commonly available.

I feel that going after machine guns as covered by the NFA will fail - little chance of success either legally through the courts or legislatively; might suceed in modification of the required sign offs from law enforcement making it more along the lines of shall sign/issue if criteria is met.

Better chance to get the Hughes amendment from 1986 - though that will take time and work - basically the argument that NFA as it covers machine guns has been effective and Hughes is a complete ban of a type of firearm owned by citizens for almost 100 years.

The easiest hopefully will be a requirement on the bearing of arms - i.e. that state must allow either open or ccw - it can't ban both - and ccw would have to be shall issue with an objective standard - otherwise it would run afoul of equal protection. Might even be able to get state to state reciprocity as it is a "fundamental right."

Also with felons and Lautenberg - may be able to deep six Lautenberg (lifetime ban on a fundamental right for a misdemeanor) and lifetime ban on non-violent felons - as said with felons a review process with criteria for reinstatement.

And look forward to years of litigation and working to build documentation and public consensus.

[BillCA]

I'll agree with Mack that we'll see years of litigation ahead of us. Some will be wins and some will be losses. But if we chose the battles well, there'll be more wins.

"May issue" laws will work only as long as there isn't a way for the agency to reject without an explicit reason.

Defining "Arms" will be a source of entertainment as anti's attempt to disqualify or limit the right. Handguns, rifles & shotguns will be generally protected. Some knives/blades will be protected and some won't. I expect that swords, sabres, bayonets and even a battleaxe will be protected. Harder to persuade the court that they are protected will be things like body armor, helmets, night-vision gear will be

Arguing the definition of "bear" will provide even more amusement. The anti's will try to argue that the carrying of firearms outside one's home is an activity the State can regulate for public safety. The fun comes when they attempt to torture the meaning of "a right" in a way that would allow them to tax and/or curtail it. (Can the city/state suspend my open carry permit if I fail to pay for my dog or cat license?)

SBR's, SBS's and sound suppressors: I would think that the proper method to argue for a change to these laws would be to argue for very serious penalties for misusing them in a crime. Punish the misuse of the device enough to make its misuse a large risk.

I would expect to see legislatures focus on raising the penalties for crimes involving firearms. From ADW to brandishing to robbery, we can expect larger fines and longer jail terms. I'd expect some of the broadened definitions to cause some problems too.