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Old January 25, 2020, 01:11 PM   #1
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Virginia Bans and the Federal Courts

I was browsing another forum, and I encountered this question:

Will the Virginia gun laws eventually be struck down by the Supreme Court?

And it had this one reply:

Maybe. But it depends on which law you’re referring to and what you’re trying to argue.

Restrictions on "assault firearms" and "high-capacity" magazines could well be vulnerable to the doctrine of "common use for lawful purposes" established in DC v. Heller in 2008. The state would be challenged to demonstrate that what it describes as "illegal assault firearms" have any history of criminal use in Virginia, especially relative to their popularity. Similarly, Virginians own untold millions of what the state declares to be "illegal high-capacity magazines," a number that dwarfs their relevance to criminal use. The state would have to explain when and where and how capacity has been of any consequence, not just for one or two events, but relative to "common use." Assuming the high court is serious about "common use for lawful purposes," these arguments would be difficult ones for the state to make.

In recent years, the high court has declined to address bans on "assault weapons," likely because the court members who are constitutionally opposed to such bans haven’t been comfortable that they’d have the votes in the end. But now, with the switch from Kennedy to Kavanaugh, the prospects for the court hearing a challenge have improved, as John Roberts now represents the closest thing to a swing vote.

I'm not a lawyer, but I like to think I'm reasonably well informed, and I know that a legal argument consists of a helluva lot more than parroting "shall not be infringed." Many people here are lawyers, so how does this argument hold up?
"To me it doesn't matter if your hopes are dreams are shattered." -- Noel Gallagher
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Old January 25, 2020, 01:58 PM   #2
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Not a lawyer, either, though to me the argument seems solid.

However there are other things that need to be remembered about how the process works (and doesn't work).

Look at the Heller decision, and the law that created the case, AS WELL as the law that resulted from the case. Also (and legal eagles correct me if I err) I think the Heller case got to "sidestep" part of the process, because DC is not a state.

First, the law must be passed, then enforced. Second there must be found an "injured" party, who is recognized to have "standing" in the eyes of the court. (and this assumes such a person has the means to support the legal costs, along with the desire, and the patience)

Then the case has to go through all the lower courts (and since it is a state law this will mean the Virginia courts(?), then lower Federal courts, and then finally the Supreme Court, IF the high court deigns to hear the case.

DC passed their law banning handguns (which also required keeping the allowed (previously registered) handguns unloaded and disassembled in your home) in 1976.

The high court ruled on that law in 2008.


the process took over 30 years. For that case. Is it a given it will take that long? no. It could take longer. Or it could take less time. It could even be "never" if the court refuses to hear the case.

Speculation on what the current Supreme Court would do is pointless. It is extremely unlikely that any of the Justices currently sitting will be on the Court when the case is finally brought before them.

Maybe it will get a "fast track" and only take 20 years to get to the high court. Even if only 10 years (something currently unbelievable) the same people will not be on the court then. And no one knows (now) who will be making any ruling or what it might be, 10, 20, or 30+ years down the road.

You may absolutely count on one thing, that if the Government takes something away, then decades later decides they were wrong to do so, you will NOT get it back. You (or more likely your heirs) may be "compensated" but they won't get what was taken back, even if it is something enduring, such as land. And NO ONE can give you back TIME, either.
All else being equal (and it almost never is) bigger bullets tend to work better.
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Old January 25, 2020, 02:04 PM   #3
American Man
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I've been waiting to see the effects of 187 approved judges to actually mean something. This would be a good time to see it mean something when, not if, Northam signs the new laws. If anti 2A laws get struck down and the left wants to appeal the ruling, it would be in our favor if the SCOTUS declines to take up the cases. But with Roberts on the court, I'd never feel confident that we would have the advantage. He is just too untrustworthy.
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Old January 25, 2020, 11:44 PM   #4
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It doesn't take 30 years for a single case to get to SCOTUS. That said it can take 3-15years, depending on how the lower courts go (one thing gets "fixed" after several appeals, then the offending party finds a new way to burden people, etc).
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Old January 26, 2020, 02:46 AM   #5
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New York and Connecticut both banned AR-15s (and so-called "assault weapons" in general) several years ago. 2A proponents in both states sued. They lost the cases in the lower courts and both 2A groups appealed. The federal appeals court consolidated the two cases because they were essentially identical, and they were heard together on the same day. The 2A groups lost on appeal. They tried to take it before the Supreme Court and were denied certiorari.

As has been commented above, there is some sentiment that the pro-2A bloc within the SCOTUS didn't want to hear the case because there aren't enough solid 2A votes to make a win at all certain. Chief Justice Roberts, as has been noted, is probably rather "squishy" on the 2A. IMHO, we need at least one more of the liberal bloc to leave the court and be replaced with a solid strict constructionist justice before I would feel safe with the SCOTUS getting any more serious 2A cases.
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