Whither Gun Control Under McDonald?

[mack59]

Yes I read the decision and it seems that the court identified an individual right to keep and bear arms, that the right is a fundamental right, that it will be applied under either strict scrutiny or intermediate scrutiny and that the complete scope of that right will be defined through litigation in up coming cases.

The limitations mentioned in Heller and McDonald are very limited themselves - the presentation that the reasonable limitations will allow essentially all gun control laws intact is not supported by the texts of the decisions at all. I would agree that nothing would really change if the minority's opinions had prevailed - but they did not.

Perhaps if one lives in Alaska or Arizona or such then really little will practically change - but for citizens of NY, IL, HI, CA and such - this is the beginning of a huge sea change - as stated in a previous post - see fiddletowns post #71 in the McDonald thread - which is essentially on target - except I would quibble with the viability of so called AW bans.

[Rotnguns]

More about substantive due process:

As I understand this issue, if a law in my state/city/county limits my right to own a flash hider, and I challenge the law under the guise of my 14th amendment rights, the state/city/county must meet the subsantive due process test. Therefore, my burden is now shifted to the other side. Can the government show that limiting my right to own a flash hider is for the overwhelming public good?

Remember, the McDonald decision incorporated the 2nd amendment under the 14th amendment....

[JohnKSa]

...the presentation that the reasonable limitations will allow essentially all gun control laws intact is not supported by the texts of the decisions at all.

Strawman. No one is claiming that "all gun control laws" will remain intact. In fact the opening post is quite specific.

However it's pretty clear that anything short of a complete prohibition of ownership/possession of an entire general class of commonly used defensive weapons is not going to violate anything in Heller or McDonald.

That makes a BIG difference in places where such prohibitions exist and not much difference where they don't.

Can the government show that limiting my right to own a flash hider is for the overwhelming public good?

A "flash hider" is an entire general class of firearms commonly used in self-defense?

How is that even remotely applicable to McDonald/Heller?

[Rotnguns]

A "flashhider" is an entire general class of firearms commonly used in self-defense?

How is that even remotely applicable to McDonald/Heller?

Not sure where this came from?? Alito's opinion specifically incorporated the 2nd amendment against the states as a fundamental right, under the 14th amendment. This does indeed go further than Heller 1 or 2. It's absolutely not Heller warmed over and served to the states. Remember, this was incorporated under the 14th amendment, which did NOT apply to the original DC case.

[mack59]

Also, I would note that people tend to forget that there is and has been a real change in the view of the general public when it comes to guns. That is in large part due to the success of concealed carry laws. The open carry movement has been taking it the next step - which is changing the public perception fed by years of negative messages about guns from the media and politicians that guns are bad and only gun nuts or bad guys own or carry guns. A recent Harris poll found that 45 percent of the general population approved concealed carry and an amazing 50 percent approved open carry.

This court decision will also work to win people to the pro-rkba view - now it will be taught without contradiction in schools that the second amendment protects an individual fundamental right to keep and bear arms and that part of that right is the right to self defense.

Yes, there is room for continued legislation, and the fight is far from won, and it will never be over or completely won. But this is a huge victory and there will be because of it, more concrete and real victories to come in the courts.

People may nay say it, and minnimize it - but then ten years ago no one believed we would see this day. I was told by a member of the NRA board that this would never happen. So pardon me if I tend to believe the text of the decisions, the context of the history of the courts jurisprudence on dealing with fundamental rights under strict or intermediate scrutiny, and yes even Gura's opinions on the future when it comes to the RKBA.

[Rotnguns]

Good points, Mack, and I think it will take a day or two for some to understand the power of Alito's opinion. Some of the more savvy legal writers caught the "fundamental" clause in Alito's opinion right away, while others did not fully appreciate what it meant.

[JohnKSa]

Remember, this was incorporated under the 14th amendment, which did NOT apply to the original DC case.

Obviously, or McDonald wouldn't have been necessary.

This does indeed go further than Heller 1 or 2. It's absolutely not Heller warmed over and served to the states.

Both rulings are about complete prohibitions against the ownership/possession of handguns. Other than extending that ruling to apply to state/local laws, what is it in McDonald that goes beyond what Heller says about protecting firearm rights?

People may nay say it, and minnimize it...

Speaking for myself, that's not my intent at all. I just think it's important that people understand it for what it is.

Both rulings are huge victories for us. But that doesn't mean that all of us will see the laws that affect us overturned. Most of us won't. It doesn't mean that all of us will see laws prevented from going into effect as a result. Most of us won't.

People shouldn't minimize the rulings, but by the same token they shouldn't try to make them more than what they are. They are what they are and what they are is very good for the gun rights advocates.

Some of the more savvy legal writers caught the "fundamental" clause in Alito's opinion right away...

I think that if you look back at the Heller ruling similar language was employed, was it not?

[mack59]

Heller and McDonald are not the end of litigation they are the beginning. They do not set the limits of the RKBA - they set the RKBA as a fundamental individual right that will in the future be applied with strict or intermediate scrutiny.

"However it's pretty clear that anything short of a complete prohibition of ownership/possession of an entire general class of commonly used defensive weapons is not going to violate anything in Heller or McDonald."

There is nothing in Heller or McDonald to support this leap in logic. Heller and McDonald dealt with a complete prohibition of a entire class of weapons because that was the specific question in the case before the court. To then extrapolate from that the right only covers that and nothing else is not supported by the text of the decision or the courts history of dealing with fundamental individual rights under strict or intermediate scrutiny.

But if individuals want to have a gloom and doom party and drink the Brady Koolaid - far be it for me to interfer.

We shall know who is right soon enough given the cases in CA and DC.

[Rotnguns]

Both rulings are about complete prohibitions against the ownership/possession of handguns. Other than extending that ruling to apply to state/local laws, what is it in McDonald that goes beyond what Heller says about protecting firearm rights?

This is a good question - the difference between Heller and McDonald is that Alito delcared the 2nd amendment a fundamental right . You can check out the entire opinion on SCOTUSBLOG. Just look at Alito's part - no need to peruse all the dissents. This wording of this phrase is surprisingly clear and strong. Alito's declaration, according to most legal interpretations that I have seen, confers a strict level of scrutiny. It's much more declarative than Heller, since the color of the 14th was not an issue.

[JohnKSa]

Heller and McDonald dealt with a complete prohibition of a entire class of weapons because that was the specific question in the case before the court.

Exactly.

To then extrapolate from that the right only covers that and nothing else...

That's not what I'm saying at all. What I'm saying is that McDonald and Heller don't go any farther than that. I expect to see more cases in the future and more advances, but saying at this point in the game that an AWB would be legally problematic based on what THESE rulings say is speculative at the very best.

...the difference between Heller and McDonald is that Alito delcared the 2nd amendment a fundamental right . You can check out the entire opinion on SCOTUSBLOG. Just look at Alito's part - no need to peruse all the dissents. This wording of this phrase is surprisingly clear and strong. Alito's declaration, according to most legal interpretations that I have seen, confers a strict level of scrutiny. It's much more declarative than Heller, since the color of the 14th was not an issue.

Somehow I don't think what I'm trying to say is getting across.

All of that is well and good, but the two rulings still don't directly apply to anything other than complete prohibitions against possessing an entire general class of commonly used self-defense firearms.

I don't think that anyone doubts that McDonald will be more useful than Heller in the future, but as things currently stand, the only REAL difference is that McDonald extends Heller to state/local laws.

[Rotnguns]

That's not what I'm saying at all. What I'm saying is that McDonald and Heller don't go any farther than that. I expect to see more cases in the future and more advances, but saying at this point in the game that an AWB would be legally problematic based on what THESE rulings say is speculative at the very best.

The extent of McDonald beyond Heller is certainly yet to be resolved. In terms of specific instances such as an AWB ban, a skilled litigator may indeed prevail by making a convincing case that public safety is clearly served by limiting mag capacity, etc. On the other hand, it could be shown that under the 14th, restricting our access to a class of weapons (rifles?) based upon pistol grips, etc, does not meet the necessary burden.

[Rotnguns]

All of that is well and good, but the two rulings still don't directly apply to anything other than complete prohibitions against possessing an entire general class of commonly used self-defense firearms.

IMO, the level of strict scrutiny in McDonald goes much further than dealing with a complete ban. This level of scrutiny requires a clear and compelling reason for limiting our access to the class of firearms you discuss. Previously, it was enough for a state or city simply to say, "you can't have these."

I may be wrong, but Heller did NOT have such a level of scrutiny.

[JohnKSa]

Ok, let's try it this way.

You come to me and say that X won't let you have a handgun in your home for self-defense. I say that's wrong, X has to let you have it because X can't prohibit you from possessing an entire class of firearms which are commonly used in self-defense.

You come to me again and say that now A, B, C & D won't let you have a handgun in your home for self-defense. I say that's wrong, EVERYONE has to let you have it because such a prohibition violates a fundamental right. No one can prohibit you from possessing an entire class of firearms which are commonly used in self-defense.

How is the list of firearms that you can and can't own different after the second ruling than it was after the first ruling?

[mack59]

Thank you for clarifying your view, however the originator of this thread was postulating that AW bans would continue to be constitutional and asked for speculation. The postulate that AW bans will continue to be constitutional after Heller and McDonald is also pure speculation.

However, the history of jusriprudence in dealing with fundamental individual rights as applied under strict or intemediate scrutiny does give a historical and general legal basis to the "speculation" that an AW ban would stand up to scrutiny.

But as I stated we won't in legal terms have to wait long to have our answers to these questions - CA has a case on hold that deals with an approved weapons list or roster (essentially the same as an AW ban) and also a case dealing with may issue vs shall issue concealed carry. Two virtually similar cases are also being litigated in DC. So we shall see shortly.

I see as unrealistic those who think that virtually all gun laws will be overturned - such as the laws regarding machine guns. But I also see as unrealistic those who feel that the RKBA being found to be a fundametal individual right will not significantly impact many current gun laws.

The courts have not typically stood for the arbitrary infringement of fundamental individual rights. AW bans are essentially arbitrary in nature as they emphasize looks or form over any real functional difference.

[Rotnguns]

Ok, found a quote about Heller from FreeLibrary:


Heller argued that the D.C. gun ban was unconstitutional no matter which standard of review the Supreme Court applied. Accordingly, said Heller, the Court did not have to address the standard of review question. On the other hand, should the Court decide to tackle that issue, Heller urged that "strict," not heightened, scrutiny be the standard. (10) To justify a gun control regulation under strict scrutiny, the government would have to demonstrate a compelling need for the law and then show that any restrictions were narrowly tailored--that is, no more invasive than necessary to achieve the government's objectives. (11) Traditionally, the Court has been more rigorous in scrutinizing government regulations that infringe on a "fundamental" right: one that is "implicit in the concept of ordered liberty" (12) or "deeply rooted in this Nation's history and tradition[s]." (13) Virtually all of the first eight amendments qualify, (14) and it is difficult to imagine that the right to keep and bear arms is an exception to the rule.

Ultimately, the Court agreed with Heller that D.C.'s ban on all functional firearms in the home is unconstitutional "[u]nder any of the standards of scrutiny [the Court has] applied to enumerated constitutional rights." (15) But the Court did not choose a specific standard. In later cases it might apply something less than the strict scrutiny standard that Heller had suggested. On the other hand, the Court categorically rejected "rational basis" scrutiny, which has been a rubber stamp for nearly all legislative enactments. (16) The Court also rejected Justice Stephen Breyer's "interest-balancing" test, which is merely a repetition of the process that legislatures already go through in crafting regulations. (17) Something higher is demanded, said Justice Scalia, when an express constitutional right is at issue. (18) At a minimum, it appears that the Court will adopt some version of intermediate or heightened scrutiny.

[Rotnguns]

Ok, let's try it this way.

You come to me and say that X won't let you have a handgun in your home for self-defense. I say that's wrong, X has to let you have it because X can't prohibit you from possessing an entire class of firearms which are commonly used in self-defense.

You come to me again and say that now A, B, C & D won't let you have a handgun in your home for self-defense. I say that's wrong, EVERYONE has to let you have it because such a prohibition violates a fundamental right. No one can prohibit you from possessing an entire class of firearms which are commonly used in self-defense.

How is the list of firearms that you can and can't own different after the second ruling than it was after the first ruling?

I presume "X" is DC after Heller and the other letters are the states after McDonald?

Please check out my post above, in which the salient phrase is bold and in red. The Heller opinion did NOT specify a standard of scrutiny. The McDonald decision DID specify a standard of scrutiny, in the "fundamental right" phrase.

Using the now-ubiquitous flash hider example, under the 14th, I could challenge the flash-hider ban because it limits my right to some firearms (rifles) with no compelling reason regarding public safety.

[JohnKSa]

The postulate that AW bans will continue to be constitutional after Heller and McDonald is also pure speculation.

AFTER Heller & McDonald is one thing. UNDER Heller & McDonald is something else entirely.

There is absolutely nothing in McDonald or Heller that makes an AWB unconstitutional so it is not speculating to make the statement that an AWB would be constitutional UNDER McDonald and Heller.

On the other hand, one could fabricate a future scenario in which it might be possible to use the rulings (and perhaps other resulting rulings) as a basis to argue against and perhaps even prevail against an AWB at some point AFTER Heller & McDonald, but THAT is speculating.

I presume "X" is DC after Heller and the other letters are the states after McDonald?

Why presume anything. It's a simple scenario with a simple answer.

[Rotnguns]

Here is a quote from an analysis posted on SCOTUS Blog which supports my position. To be fair, there is at least one other analysis on SCOTUS Blog which holds that Alito's opinion did not confer a strict level of scrutiny.

Justice Samuel A. Alito, Jr., in the Court’s main opinion, did make one thing unmistakably clear to lower court judges: the right to have a gun for self-defense in the home is a “fundamental” constitutional right. That one-word label carries enormous import. Ordinarily, if a right is deemed to be fundamental, any law that seeks to limit it will be judged by the stiffest constitutional test there is: it must satisfy “strict scrutiny,” meaning that it will be struck down if the government’s need for it is not “compelling” and if the approach it takes is not the narrowest possible way to get at the problem. Some laws can survive “strict scrutiny,” but not a great many do.

Two years ago, when the Court struck down a flat ban on handguns that had been enacted in Washington, D.C., that was the first time it had found that the Second Amendment guaranteed a personal right to have a gun for self-defense in the home, enforceable against federal laws or those in the federal capital city (District of Columbia v. Heller). It nullified that law without saying that it was using a “strict scrutiny” test; indeed, it said that ban would fail using any constitutional test. So, the similar handgun ban adopted in Chicago (and in other cities, such as Toledo and Oak Park, Ill.), may well be doomed. But that may be the easiest kind of law for judges to nullify under the Amendment. Justice Alito remarked that there was “a paucity of precedent” in state courts, when viewing gun rights under state constitutions, for upholding such flat bans.

[Rotnguns]

Why presume anything. It's a simple scenario with a simple answer.

If I have to make an assumption in order to understand your argument, it's not simple to me

Could you clarify? I really don't know what you mean unless you are reasoning apriori and post priori re; Heller, DC and McDonald, Chicago.

[JohnKSa]

If I have to make an assumption in order to understand your argument, it's not simple to me

It's ok. Every so often I have to venture in here just to remind myself why I normally avoid it like the plague.

[Rotnguns]

As far as the AWB issue, there are many possible outcomes. Justice is not decided in a vacuum; certainly courts will reflect popular opinion and local sentiment. It's encouraging that so far, the NRA and GAO have very skilled litigators who seem to be getting even more effective at their craft. Also, as MACK points out, public opinion is shifting to our side.

[Rotnguns]

It's ok. Every so often I have to venture in here just to remind myself why I normally avoid it like the plague.

I considered this interchange a thoughtful and informative discussion on an issue that we both ultimately agree on (RKBA). Sorry if you got upset.

[Jim March]

I finished a seven-page summary of what I see as the implications for carry. Editing help would be good .

[Wildalaska]

But if individuals want to have a gloom and doom party and drink the Brady Koolaid - far be it for me to interfer.

And with that.....

Every so often I too have to venture in here just to remind myself why I normally avoid it like the plague....thanks John

Sorry I even started the thread.

WildinternetnationalparalegalcoursesaseducateddiscoursesallrightythenAlaska TM

[Tennessee Gentleman]

John and Ken,

Help me through this AWB. If Heller says you can't ban a class of firearms in common use for lawful purposes and the AR-15 is the best selling rifle in America AND the Brady's have created a "class" of firearms the AR-15 is a part of so called "assault weapons" class why wouldn't Heller be useful to challenge a ban since the AR-15 is in common use and is a firearms class? Breyer seemed to think it would.