Feinstein, Gorsuch and Heller

[LogicMan]

The feds can assert jurisdiction by virtue of the interstate commerce clause. Most firearms and most ammunition pass over multiple state lines before being sold, which allows the feds to preempt legislation based on the fact that the items are in interstate commerce. As to national reciprocity, there are multiple prongs on which the feds can assert jurisdiction. First, of course, is the Second Amendment to the federal Constitution. Then there's the fact that the guns and the ammo are in interstate commerce. And then there's the fact that when a person travels to another state, he or she almost certainly spends some money there so the person is also engaging in interstate commerce.

If the feds can argue (as they have) that they have jurisdiction over marijuana that was grown, sold, and smoked entirely within one state on the grounds that by growing, selling, and smoking that weed the pricipals affected interstate commerce by NOT importing the marijuana from another state, they can certainly assert jurisdiction over things that really ARE in interstate commerce.

It would be great if such legislation could get passed that would outlaw the state bans, but I think it would be struck down by the lefty courts.

 

[Glenn E. Meyer]

From Wikipedia on the Voting Rights Act:

The Voting Rights Act of 1965 is a landmark piece of federal legislation in the United States that prohibits racial discrimination in voting.[7][8] It was signed into law by President Lyndon B. Johnson during the height of the Civil Rights Movement on August 6, 1965, and Congress later amended the Act five times to expand its protections.[7] Designed to enforce the voting rights guaranteed by the Fourteenth and Fifteenth Amendments to the United States Constitution, the Act secured voting rights for racial minorities throughout the country, especially in the South. According to the U.S. Department of Justice, the Act is considered to be the most effective piece of civil rights legislation ever enacted in the country.[9]

So legislation was based on protecting a right defined in the BOR. So why can't a similar logic be used for eliminating unconstitutional gun restrictions that are contrary to the 2nd Amend.

If the lower courts struck the law down on a states rights argument, they would undercut all the rights protecting decisions that they agree with.

 

[Loosedhorse]

if the weapons are not typically possessed by law-abiding citizens because the government went and banned them arbitrarily, well that's some circular logic.

It would be.

However, before the time the NFA was passed, there were no federal restrictions on "NFA firearms"--machineguns, short-barreled shotguns, etc. Therefore if NFA firearms were indeed at that time--1934--already "not typically possessed by law-abiding citizens for lawful purposes," then under the Heller rule they would be unprotected. And since their "not typically possessed[, etc.]" status was not caused by some previous restriction, there is no circularity.

The real problem comes with newly invented arms. Any innovative weapon--revolvers, fixed-ammunition firearms, lever-actions, semi-autos, etc.--will naturally be "not typically possessed" at the time of their introduction. So, if the government simply makes it a practice to restrict new weapons as soon as they're invented, that seems not to violate Heller.

There is a way out of that circularity:

Another external source of evidence about the scope of the right to defensive arms lies in the revealed judgment of American local and state governments about this question. This judgment is most reliably expressed, not in the public statements of governments, nor in the restrictions they may seek to impose upon citizens who do not work for the government, but in the defensive equipment that they choose to issue to their own agents: ordinary patrol officers in police departments...

As Kopel notes, under the police criterion, “quality handguns,” including selfloading pistols, “would lie at the core” of such a Second Amendment, as would the “ordinary shotguns and rifles” routinely carried in patrol cars.

Source: O'Shea, MP: "The Right to Defensive Arms after District of Columbia v. Heller", WVLR 349 (2009)
https://poseidon01.ssrn.com/delivery.php?ID=156082089114105066092095081115116102002054084092007058124024019088064092014091120096027019013002018046016028088069086067082119059084071008033071116003070089022028000007083005095006091005113100116096118020020082065111017125027067067080001087071100006&EXT=pdf

 

[LogicMan]

So legislation was based on protecting a right defined in the BOR. So why can't a similar logic be used for eliminating unconstitutional gun restrictions that are contrary to the 2nd Amend.

If the lower courts struck the law down on a states rights argument, they would undercut all the rights protecting decisions that they agree with.

That's a good point, had forgotten about the VRA.

 

[Glenn E. Meyer]

All in all, I go back to my view that waiting for the SCOTUS isn't going to work. Why not try a legislative attack on gun control. Currently, the progun politicians are strictly defensive for the most part. Vote for us as it could be worse.

Proactive bills are left to languish as they babble about crap.

 

[LogicMan]

Personally, I do not think that the logic of regarding the Second Amendment as applying to only weapons typically possessed by law-abiding citizens as being logical, as there are plenty of weapons that are clearly "arms" but yet not typically possessed, for example battle axes, war hammers, swords, shields, bow and arrow, crossbows, etc...

 

[LogicMan]

All in all, I go back to my view that waiting for the SCOTUS isn't going to work. Why not try a legislative attack on gun control. Currently, the progun politicians are strictly defensive for the most part. Vote for us as it could be worse.

Proactive bills are left to languish as they babble about crap.

I could imagine the courts striking down such legislation as well though, saying that it only applied in enforcing Heller and the Second Amendment for things like hand guns and bolt-action rifles, but "assault weapons" it does not apply to, and thus was un-Constitutional, whereas the laws the Voting Rights Act applied to were all protected by the 14th and 15th amendments

But yes, we need a gun rights offense at the federal level, not defense. The problem is unfortunately, too many of the pro-gun politicians don't know much about the subject to adequately defend it

 

[Glenn E. Meyer]

Well, sadly that's true. We saw idiotic antigun congress critters denouncing things that go up! Then a candidate for Secretary of Education supports guns in schools in places where there are grizzly bears. That really helped.

The collective intelligence from all of the Congress isn't really that impressive (on all sides).

 

[lefteye]

We saw idiotic antigun congress critters denouncing things that go up!

By the way - Is she still in Congress?

 

[5whiskey]

All in all, I go back to my view that waiting for the SCOTUS isn't going to work. Why not try a legislative attack on gun control. Currently, the progun politicians are strictly defensive for the most part. Vote for us as it could be worse.

Honestly part of that Onus is on us. If Gorsuch is seated, and Trump gets one more SCOTUS nomination on Ginsburgs seat, AND he nominates someone with 2A views more favorable than Kennedy... then we should absolutely appeal some of California's asinine laws. Start with a small one as a test case, obviously.

And I realize that is a lot of "ifs" but honestly Heller was gutsy. Lot's of Pro 2A folks didn't fully support it in the beginning as they feared a ruling negative to us. If states keep piling on the stupid anti-gun legislation, I believe we need to just go for it. See if the court grant a writ, and then see what they decide.

You are right, though. I see nothing wrong in trying legislative means if we can't get court rulings to go our way in a reasonable time. The SCOTUS is picky on granting certiorari on gun rights as it is. I think they would rather not touch it if they can help it, but if there is a split between circuits and enough plaintiffs file briefs then they can't really avoid it but so long.

 

[zukiphile]

If you view the RKBA as a right guaranteed by the BOR and thus the Constitution at a level determined federally, states could not constrain it.

State discriminatory laws on race and voting were struck down as they violated basic rights. States trying to impose their religious views were struck down federally. States trying to define marriage according to race were struck down.

Thus, I see no states rights argument for limiting the RKBA beyond a Federal limit. The 2nd supposedly applies to the states now.

I find no fault with that analysis, but making it effective law will require justices who share it.

So legislation was based on protecting a right defined in the BOR. So why can't a similar logic be used for eliminating unconstitutional gun restrictions that are contrary to the 2nd Amend.

The same logic can be used, but whether that logic prevails on challenge will turn on the analysis employed by the court.

Recall that most states didn't allow for SSM and Congress had passed DOMA, but the analysis employed by the majority of the Sup Ct determined this issue.

 

[Glenn E. Meyer]

True with DOMA, etc. but with the separation of powers, protecting basic rights has to be tried with one of the avenues of our tripartite government.

The courts, if works. Congress if it works. Executive orders if it works. Then of course, the two branches can chime in on the issue. SCOTUS is semi-ultimate on constitutional issues - unless you go for an amendment.

I just despair the Congress and President in supposed pro-gun circumstances just piddling around. Since they seem so proactive on other sets of issues, I am suspicious of most of their committment to RKBA issues.

 

[5whiskey]

I just despair the Congress and President in supposed pro-gun circumstances just piddling around. Since they seem so proactive on other sets of issues, I am suspicious of most of their committment to RKBA issues.

I too am awaiting the announcement of pro-2A legislation from congress with baited breath. I personally believe gun rights is a VERY big reason why the last election turned out as it did (and why mid-terms since 2008 have turned out as they have). I am not a single issue voter, but for me the stakes were higher for gun rights this past election than most other issues. I bet many others feel the same way. So, like you I believe it's time that "congress critters" (that term cracks me up a little) to get moving on it.

It's only been a little over 2 months... but the clock is ticking until the next election.

 

[ShootistPRS]

According to the "common" meaning of the second amendment, when it was written, (see the "Federalist Papers" and period writings from "American Political Writings during the Founding Era" vol.1 & 2 and "Political Sermons of the American Founding Era") was a means to have the same or similar weapons as used by the current military foot soldier in order to fight along side them to protect from invasion. Further to serve as a deterrent to a tyrannical future government.

It is a right to keep and bear modern military types of weapons just as it was in the founding era. The states have no lawful jurisdiction over rights. They can't choose a state church, search without a warrant, restrict free thought and discussion or infringe on the right to keep and bear arms.
It is a right of the people and has nothing to do with states rights.

 

[Glenn E. Meyer]

However, the states have tried to do all of those things at times.

 

[ShootistPRS]

Yes they have and are. It has been said in many ways and in many times that government is put forth to protect the rights and freedoms of the people governed but that it is intent on getting bigger and growing stronger. When people choose to give up their freedoms and rights they lose them and all security they possessed.

 

[zukiphile]

The courts, if works. Congress if it works. Executive orders if it works. Then of course, the two branches can chime in on the issue. SCOTUS is semi-ultimate on constitutional issues - unless you go for an amendment.

All of these ultimately turn on electoral victories. The same exec that would issue an EO will nominate Sup Ct replacements. The same senate that would be involved in legislation will confirm nominees. That we already have an amendment suggests that words on paper that can be misconstrued may not be a remedy.

The prior admin's decision not to enforce some aspects of immigration law and both the prior and present admin's instruction not to enforce aspects of the revenue code raises an interesting option. Could an exec simply instruct that absent any other crime, possession use and transfer of short barrelled and select fire arms or suppressors would not be prosecuted?

I just despair the Congress and President in supposed pro-gun circumstances just piddling around. Since they seem so proactive on other sets of issues, I am suspicious of most of their commitment to RKBA issues.

Given current controversies over Gorsuch, the ACA and FIT rates, I would expect nothing good this year re 2d Am. rights. We are only a few months in and the calendar appears crowded.

My crystal ball doesn't get a lot of use these days mostly because it hasn't been all that reliable over the past year. I confess my suspicion that the current exec has a less than ordinary list of core convictions from which to operate so that positioning him to act correctly, as the demand for a Federalist Society list did, rather than waiting for him to lead on an issue becomes all the more important.

 

[steve4102]

Were in the Constitution is it said that the Supreme Court is granted the power or authority to overturn duly passes laws/legislation?

 

[Aguila Blanca]

Were in the Constitution is it said that the Supreme Court is granted the power or authority to overturn duly passes laws/legislation?

Seriously?

Article 3, Section 2:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

This was subsequently amended by the 11th Amendment.

Amendment 11:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

 

[Frank Ettin]

Were in the Constitution is it said that the Supreme Court is granted the power or authority to overturn duly passes laws/legislation?

Let's start with the Constitution (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.

And so in the course of exercising the judicial power of the United States to decide a case arising under the Constitution, Chief Justice Marshall wrote for the Court that (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....

Note that many of the Founding Fathers were lawyers. They understood judicial power, what it was, how it worked, and what the exercise of judicial power meant. So --

1. In its ruling in Marbury the Supreme Court was merely exercising its explicit authority given it in the Constitution to exercise judicial power to decide cases arising under the Constitution. In doing so and reaching its decision in Marbury it was applying established Common Law principles -- just as courts were, and are, expected to do.
   
   
2. And as Marshall pointed out, to decide the matter in Marbury the Court had to either sustain an act of Congress or conclude that the act of Congress was contrary to the Constitution, and thus sustain the Constitution. Either the act of Congress was valid, yielding one result, or it was invalid as conflicting with the Constitution, yielding a different result.
   
   
3. In other words, the Court could not, in Marbury, decide the case without choosing either a law enacted by Congress or the Constitution.
   
   
4. In effect, judicial review is not just implied by the assignment of the responsibility to exercise judicial power to decide cases arising under the Constitution. It is inherent in the exercise of judicial power to decide cases arising under the Constitution. It would not be possible to decide those cases otherwise.