Effective Firearms Regulation is Constitutional

[spacecoast]

... at least in the opinion of these two NY Times opinion piece writers (a former Congressman and a California lawyer).

http://www.nytimes.com/2016/02/24/op...onal.html?_r=0

Some of the more interesting (blatantly false) claims:

People who want to buy guns have to submit to a background check, unless they don’t want to.

Virtually all resales of guns by private individuals are left unregulated.

Here we go...

A more effective system would require everyone who owns or acquires a gun to register it. Gun owners would also need a license that could be obtained by demonstrating they can use a gun responsibly, and passing a background check.

Registration records would create a comprehensive database of all guns and their owners. During a criminal investigation, when a gun was recovered from a person who was not its registered owner, that person would face serious penalties. But so, too, would the registered owner if he had failed to report that the weapon was no longer in his possession.

You'd think they would get tired of making this old argument, proven to be false and unenforceable -

Registration could include recording the unique characteristics of a firearm’s barrel. That, combined with stamping ammunition with identifiers, could someday make shooting at someone much like leaving fingerprints at the scene of the crime.

No doubt the government can solve all our problems with its long track record of "efficient systems" -

An efficient system could instantly determine whether a proposed firearms purchase was legal, and then register the sale.

[JWT]

Interesting conclusions. How the author determined the writers of the constitution would have no problems with them is beyond my comprehension. Sadly many people read and swallow such rhetoric in a paper like the NYT.

[Pahoo]

He is not talking about our Constitutional. He is talking about Gun-Control which is purely political and not sovereign . .....

"Our" Sovereign Constitution states; Shall not be infringed. What part of shall not don't they understand. ....

Keep it simple and;
Be Safe !!!

[Glenn E. Meyer]

We've been down the "shall not" road a thousand times.

That argument just doesn't work in practicality. The battle is what reasonable restrictions will be enforced.

We can keep saying 'shall no' - but so what? It isn't going to change the battle like it was Avada Kedavra

[doofus47]

The long and the short of their argument is:
1. The secondary firearms market is unregulated.
2. This lack of regulation allows guns to pass to hands of criminals.
3. There is a need for regulating all sales to stop the flow of arms to criminals, therefore the government must hold owners accountable to register their firearms and for not reporting guns that pass from their possessions (for wahtever reason) after initial purchase and background check.

This is all good with the authors b/c:

The Second Amendment therefore means that all who exercise firearms rights should be “well regulated.”

So, you can take one of two (edit: three!) avenues of contest with the above:
1. The Historical Argument.
I don't think that word "regulate" means what you think it means.

2. The Need Argument.
How much of an existing level of potential for a criminal act to occur is necessary to REQUIRE government regulation of an individual right which, according to its own description, should not be infringed?

3. The Purpose Argument.
What if the background checks were re-calibrated to deny anyone named "Mohammed"? Or "John"? Or "Anyone with less than $5000 in a bank account"? Couldn't this "regulation for public good" become a tool to oppress some demographic of citizens. Wouldn't the "regulation" then defeat the intent of the Amendment, allowing people to protect themselves even from a vengeful government?

I think that any of these arguments is sufficient to scuttle their thesis.

[Pahoo]

We've been down the "shall not" road a thousand times.

Looking forward to a thousand more .

That argument just doesn't work in practicality. The battle is what reasonable restrictions will be enforced.

Will never work as long as it gets politicized and when you say reasonable, by whose measure? Currently there are too many "Reasonable Restrictions" that are not being enforced, so we need more of them?? ..

We can keep saying 'shall no' - but so what?

So what ?? Are you saying we should compromise on what our Constitution says? In today's values, what else besides the Constitution and our value system/ethics, do we have ??

Be Safe

[Glenn E. Meyer]

Your post makes my point. There is a fight that takes more coherent arguments than just repeating a mantra.

Like I said, folks - we have done this many times before on how constitutional rights are not absolutes.

Also, we don't do religion - period.

Does anyone think that a SCOTUS decision that voids AR restrictions will be won by just saying the mantra to the Justices?

I would like this to continue in a sophisticated manner, so let's move off the 'shall not' saves us and talk to the article's points.

[zukiphile]

I don't believe the battle is currently just determining which reasonable regulations will be enforced. It seems that some very unreasonable regulations have been upheld, regulations that are not consistent with the rationale in Heller.

If strict scrutiny were to be applied, a regulation might need to be well more than merely reasonable.

Beyond the legal battle, isn't the next battle on this issue predominantly political? Unless we get another Federalist on the Supreme Court, isn't there a very real risk that Heller it self will be reversed?

[Pahoo]

There is a fight that takes more coherent arguments than just repeating a mantra.

I certainly agree and would further ask you; What is our point of departure or foundation? I used the word religious values as generic as I could get as I still believe in a Higher-Power. ......

By the way, I never use to word; Mantra as it denotes a particular religion. ..

Be Safe !!!

[Branko]

Out of curiosity, if someone said "well, let's do away with the NFA restrictions and similar ineffectual restrictions, but enforce registration and thorough background checks", do you think that'd get some support from both sides of the camp as some sort of compromise?

[zukiphile]

Out of curiosity, if someone said "well, let's do away with the NFA restrictions and similar ineffectual restrictions, but enforce registration and thorough background checks", do you think that'd get some support from both sides of the camp as some sort of compromise?

The problem with registration of firearms with the government is that it has historically been used so that the government can find firearms owners and take their firearms.

So, the only way registration of firearms with the government would make sense would be if we amended the U.S. Constitution to keep the government from taking our…

… Oh, wait.

[kilimanjaro]

Branko, not to berate you, but the antigun folks are not the least bit interested in reducing or eliminating any existing restrictions. There is no compromise with them. None.

They want to add restrictions, not streamline them or make them effective. If effectiveness was a requirement, they would have folded their tent and gone away decades ago.

[44 AMP]

I recall seeing Mikva's name on gun control issues for years. During his time in Congress, he never met a gun control proposal he didn't like.

One thing he is doing is using the modern 20th/21st century usage of the term "well regulated" and NOT the 18th century use of the term that our Founding Fathers used.

In those days, "well regulated" had nothing to do with laws, rules OR GUN SAFETY. Abner is so off base on that point it is laughable.

"Well Regulated" meant that it (whatever the subject was) was in proper working order. A clock was "well regulated" if it kept the proper time.

A well regulated militia meant that militia member showed up for duty "well regulated", which meant they had their arm, some ammunition, and their basic cooking, camping and clothing gear, and knew the rudiments of military drill and discipline.

It meant the government (local or above) did not have to provide material or training before the militia could act. The Minutemen showed up ready for action. They were "well regulated" because they could do that. Militia that showed up needed to be equipped and/or trained was considered "poorly regulated".

This opinion piece is from someone who spent decades in public office, pushing gun control the entire time. No argument is going to change his mind.

[Pahoo]

In those days, "well regulated" had nothing to do with laws, rules OR GUN SAFETY. Abner is so off base on that point it is laughable.

Totally agree and from what I have be able to glean from some past writings, was that "regulated" primarily dealt with discipline and preparedness. Now then, can't help thinking that some "control" came into play but it had little or nothing to do with firearm's ownership.

Be Safe !!!

[Frank Ettin]

Originally Posted by Pahoo

..."Our" Sovereign Constitution states;...

What our Constitution states and how it applies has been a matter for dispute almost as soon as the ink was dry. Hylton v. United States in 1796 appears to be the first major litigation involving a question of the interpretation and application of the Constitution. Then came Marbury v. Madison decided in 1803; and McCulloch v. Maryland was decided 10 years later, in 1813.

The Founding Fathers assigned the role of deciding what the Constitution means and how it applies to the federal courts (Article III, Sections 1 and 2):

Section 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish....

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution,...

The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute. Many of the Founding Fathers were lawyers and well understood what the exercise of judicial power meant and entailed.

Thus if there is disagreement about whether a statute enacted by Congress applies to decide a controversy or the application of the statute is barred by the Constitution, the matter is one within the province of the federal courts to decide. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177 -- 178):

...It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply....

It's well settled law that under certain circumstance and to some extent a constitutionally protected right may be regulated. What those circumstance might be and the nature and extent of permissible regulation will be worked out by the courts. To do so, a court will consider, among other things, the nature of the right, the nature of the regulation, and the governmental purpose intended to be served.

For the purposes of illustration, let's consider the regulation of rights protected by the First Amendment. While the First Amendment protects freedom of speech, assembly and religion against laws that abridge those rights we know there has been a history of certain regulation of speech, assembly and religion. A few examples are:

• Laws prohibiting such things as false advertising, fraud or misrepresentation, as well as laws requiring certain disclosures in connection with various transactions, would absolutely survive a challenge to their validity on Constitutional grounds even though such laws do impinge on the freedom of speech. Among other things, such laws serve compelling state interests related to promoting honest business and helping to preserve the integrity of commercial transactions. They tend to be only as broad as necessary to serve that function.
  
  
• If you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true. These are also laws that abridge freedom of speech, and yet they are regularly enforced.
  
  
• Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official. See, for example:
  
  
  • Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), in which the Court, in upholding a Colorado law restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility, noted:

    ...We are likewise persuaded that the statute is "narrowly tailored" to serve those interests and that it leaves open ample alternative channels for communication. As we have emphasized on more than one occasion, when a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement...

  • Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir., 2006) in which the court upheld a Santa Monica ordinance requiring a permit for public assemblies. In fact in Santa Monica Food Not Bombs the court specifically acknowledges that the ordinance may burden the protected right, noting, at pg 1038:

    ...A narrowly-tailored permitting regulation need not be the least restrictive means of furthering a locality's asserted interests. The regulation may not, however, burden substantially more speech than necessary to achieve a scheme's important goals. See United States v. Baugh, 187 F.3d 1037, 1043 (9th Cir.1999). "[T]he requirement of narrow tailoring is satisfied `so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'" Ward, 491 U.S. at 799, 109 S.Ct. 2746 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985))...

  
  
• In the leading case on prior restraint (Near v. State of Minnesota Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)) the Court in striking down a Minnesota statute allowing for the abatement, as a public nuisance, of malicious, scandalous and defamatory news analyzed in considerable detail and depth the scope and extent of the infringement of the freedom of press, the interests served and the availability of other and narrower remedies. And the Court then reached the conclusion that the statute went too far to be a permissible regulation.
  
  But nonetheless the Court also noted that certain interests, under certain circumstances would justify even prior restraint (Near, 283 U. S. 657, at 715 - 716):

  ...The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of peace are such a hindrance to its error that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' Schenck v. United States, 249 U. S. 47, 52, 39 S. Ct. 247, 249, 63 L. Ed. 470. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.6 On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not 'protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 139, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874.' Schenck v. United States, supra. These limitations are not applicable here. Nor are we now concerned with questions as to the extent of authority to prevent publications in order to protect private rights according to the principles governing the exercise of the jurisdiction of courts of equity...

• In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion (Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890)).

So in fact the reality is that rights protected by the Constitution may nonetheless be subject to some limited regulation. The foregoing discussion of First Amendment jurisprudence serves the limited purpose of demonstrating that the courts do permit limited regulation of a constitutionally protected right. There are numerous examples of laws sustained by the courts which abridge freedom of speech, freedom of assembly, freedom of association, and freedom of religion. And First Amendment jurisprudence also offers some clues as to how such regulations will be evaluated by the courts.

We can not expect, nor will we see, perfect correspondence between the regulation of rights protected by the First Amendment and the regulation of rights protected by the Second Amendment. First Amendment jurisprudence is quite mature at this point, but Second Amendment jurisprudence, in the wake of Heller, is in its infancy. However, we can expect some regulation of Second Amendment rights to be upheld by the courts.

With regard to any existing or possible future governmental actions which might be applied to limit, restrict or prohibit activities associated with the keeping and/or bearing of arms, here's essentially how things work:

1. Any governmental action limiting, restricting or prohibiting activities associated with the keeping and/or bearing of arms is subject to judicial challenge.
   
   
2. In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.
   
   
3. There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues.
   
   
4. The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.
   
   
5. Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.
   
   
6. Second Amendment jurisprudence is still in its infancy. Until Heller just five years ago, it was still in doubt whether the Second Amendment would be found to describe an individual or collective right. Until McDonald just three years ago, the law was that the Second Amendment did not apply to the States (United States v. Cruikshank, 92 U.S. 542 (1876)). So the scope and extent of permissible regulation of rights described by the Second Amendment is still unclear.
   
   
7. The bottom line is that Second Amendment jurisprudence will need to mature over time as these sorts of issues get litigated.

[Armorer-at-Law]

Generally, gun control laws are not effective (in reducing crime, injuries, or deaths). They may be "effective" in other ways, such as deterring purchases by making it more trouble than some are willing to go through. But if a law (gun control or otherwise) is unconstitutional, then no amount of effectiveness (even in a legitimate purpose) will ave it.

Laws that would violate the 4th Amendment protection against unreasonable search and seizure or the 5th Amendment protection against self-incrimination, for example, would probably be very effective at reducing crime, injuries, and deaths. But that doesn't make them Constitutional or save them from being struck down.

In other words, arguments about how effective a gun control law may be, even at achieving a legitimate purpose, are irrelevant to the discussion about whether it is unconstitutional.

Unfortunately, we just lost one of our Supreme Court justices who understood this. Unfortunately, there are at least three other there who reject this premise.

[Spats McGee]

Originally Posted by armorer-at-law

. . . .laws that would violate the 4th amendment protection against unreasonable search and seizure or the 5th amendment protection against self-incrimination, for example, would probably be very effective at reducing crime, injuries, and deaths. But that doesn't make them constitutional or save them from being struck down.

Don't forget the 8th.