Legal Question about Heller and Beto
- Thread starter Tennessee Gentleman
- Start date
Aguila Blanca
Staff
Constitutional amendments are a special case. An amendment to the Constitution IS the Constitution. Not even the Supreme Court can rule that a provision is the Constitution is unconstitutional.sundog said:
Understand. My point was just because something was law does not mean that it has to be law in the future, special case or not. Other laws have been allowed to expire (sunset) or actually repealed.
If nothing else, this is an interesting conversation.
If nothing else, this is an interesting conversation.
Tennessee Gentleman
New member
So now my next question is whether the proposed Biden policy would withstand Heller and SCOTUS scrutiny? I have it here for ease of reading:
From post #12
And examples comes up so easily (I bolded some parts for emphasis):
As a side note in Minnesota the big push for the last couple years has been universal background checks and red-flag gun confiscation laws. In one of the UBC plans if you ever sold a gun you'd be responsible, under law, to have the paperwork for who you sold it to at hand forever and ever. Our state rep pushing the bill saw nothing onerous about this at all. A rep fighting the bill asked how many couples in Minnesota did he think could produce their marriage licenses at will.
And examples comes up so easily (I bolded some parts for emphasis):
(alliteration is SO effective!!!)
As a side note in Minnesota the big push for the last couple years has been universal background checks and red-flag gun confiscation laws. In one of the UBC plans if you ever sold a gun you'd be responsible, under law, to have the paperwork for who you sold it to at hand forever and ever. Our state rep pushing the bill saw nothing onerous about this at all. A rep fighting the bill asked how many couples in Minnesota did he think could produce their marriage licenses at will.
Yeah. Because everyone knows you can sign up to legally hunt children if you pay for the proper license and stamps.
That statement is tailored for a certain audience, and it's sad that there will be people who read it and think it's a good idea and makes sense instead of seeing that it is nonsense riddled with lies.
Tennessee Gentleman
New member
I agree with many of the comments about the Biden policy but at this time there is a real possibility that the Dems will take the Senate while retaining the House and then do away with the Senate filibuster and if Biden wins then this could very well be a reality quite soon.
The question remains for the board, will it pass Heller muster? SCOTUS may well be our last resort.
The question remains for the board, will it pass Heller muster? SCOTUS may well be our last resort.
The only answer that has any chance of being reasonably accurate at this time is that it depends.
It depends on how the law is written. It depends on how SCOTUS interprets it and on the composition of the court at the time they take it up (if they take it up).
There's just no way to say in advance how it will turn out.
If the law bans everything semi-automatic, that might be a big enough bite to bring Heller into it, but even then I don't think it's a sure thing.
If the ban only affects a small subcategory of semi-automatic firearms (e.g. Semi-automatic centerfire rifles with pistol grips and detachable magazines holding more than X rounds) then my guess is that Heller won't be enough to overturn it.
If it is just a magazine ban/limit, my guess is that it will stand.
Aguila Blanca
Staff
The question cannot be answered. It depends on the language of the law if/when enacted, and also on the makeup of the SCOTUS at the time an appeal gets to it. First, there's no guarantee they would even hear an appeal. Remember, in this past session there were several 2A cases, and SCOTUS watchers thought they would almost certainly hear at least one of them. They didn't hear any.Tennessee Gentleman said:
Tennessee Gentleman
New member
JohnSKa said:
So, if we take Biden at his word. He and a Democratic Senate (after eliminating the filibuster) will pass a law that forces all of us who own AR-15s (and many other type weapons like them) to either register them as NFA weapons or have them "bought back" by the government and THAT you believe will pass SCOTUS.
Ok, thanks for the comment.
???Tessennee Gentlenam said:
Since the blurb doesn't define what an assault weapon is, and since that definition is pretty important under Heller, NO, I"m not saying that I think Biden's plan will "pass SCOTUS". I'm saying it depends.
That's why I said: "The only answer that has any chance of being reasonably accurate at this time is that it depends."
As far as registration goes, registration is not a ban. Heller is about bans. The Heller opinion specifically states that it does not address issues of registration, so as far as Heller goes, there's nothing in it that would prevent a law that requires ALL firearms to be registered.
That doesn't mean I think that SCOTUS would uphold federal registration of assault weapons, I'm just saying that Heller doesn't address that issue. Heller provides no information at all into the opinion of SCOTUS on firearm registration schemes.
Whether some registration scheme would "pass SCOTUS" would depend on how the law is written.
Heller also doesn't address buybacks, so it provides no insight at all as to SCOTUS' opinion on the constitutionality of mandatory buybacks. I don't know of anything that would provide insight into that.
At this point, there's simply not nearly enough information to make any sort of a definitive statement about whether Biden's plan will "pass SCOTUS" or not.
Until we have something on paper that we can really examine, we won't have any idea at all. We can speculate about the details of the scheme and hypothesize how SCOTUS would react, but that's two levels of speculation deep.
When someone can provide the full text of the bill stemming from Biden's proposal, then it will be possible to make some educated guesses. They might still be wrong--SCOTUS can be unpredictable--but at least we'd have something to work from. Right now all that can be done is to speculate about the reaction of SCOTUS to a plan whose details we can only speculate about.
The answer is that it depends.
Here's the Heller ruling. Without the details of Biden's plan, it can't be used to provide anything approaching definitive answers, but reading through it would help provide some background for what sort of gun control issues are addressed in the ruling.
https://www.supremecourt.gov/opinions/07pdf/07-290.pdf
Aguila Blanca
Staff
However, if some hypothetical Biden administration law were to classify all "assault weapons" (whoever they are defined in the law) as subject the NFA, then the owners would be paying a tax. And that would mean taxing a Constitutional right, which has never before been allowed.JohnKSa said:
It's all speculation at this point.
Correct. And, to reiterate: first it has to come before the SCOTUS, and there is no guarantee that they would accept a case, even if a case made it that far.
All firearms and ammunition are already federally taxed. Not just that, they are taxed in excess of normal goods specifically because they are firearms and ammunition.
https://www.govinfo.gov/content/pkg...subtitleD-chap32-subchapD-partIII-sec4181.pdf
It's also worth noting that although Heller did not address registration in the ruling, it wasn't because there was no opportunity to do so. In fact, the matter at the root of Heller was that DC required that handguns must be registered but prohibited registration.
Heller found that they could not prohibit registration because that amounted to a ban of all handguns. In the process of making that ruling, SCOTUS implicitly accepted the premise that registration of all handguns was reasonable--although there was certainly no explicit statement to that effect.
https://www.govinfo.gov/content/pkg...subtitleD-chap32-subchapD-partIII-sec4181.pdf
§ 4181. Imposition of tax
There is hereby imposed upon the sale by the manufacturer, producer, or importer of the following articles a tax equivalent to the specified percent of the price for which so sold:
Articles taxable at 10 percent—
There is hereby imposed upon the sale by the manufacturer, producer, or importer of the following articles a tax equivalent to the specified percent of the price for which so sold:
Articles taxable at 10 percent—
Pistols.
Revolvers.
Articles taxable at 11 percent—Revolvers.
Firearms (other than pistols and revolvers).
Shells, and cartridges.
Shells, and cartridges.
It's also worth noting that although Heller did not address registration in the ruling, it wasn't because there was no opportunity to do so. In fact, the matter at the root of Heller was that DC required that handguns must be registered but prohibited registration.
Heller found that they could not prohibit registration because that amounted to a ban of all handguns. In the process of making that ruling, SCOTUS implicitly accepted the premise that registration of all handguns was reasonable--although there was certainly no explicit statement to that effect.
Aguila Blanca
Staff
Point taken.JohnKSa said:
Also a good point.
To which it might be added that the original Militia Acts of 1792 required registration (indirectly--sort of). The following is from the second Militia Act, dated May 8, 1792:
Militiamen were required to be enrolled, and were required to have the specified type of firearm. That, in essence, was a form of registration, albeit not imposed directly on the firearm but on the owner.
Speaking only for myself, if I owned an AR-15 I wouldn't object to registering it with the local police if the purpose was so they would know who they could call on for reinforcements if there should be some sort of Red Dawn kind of situation. But the idea of registering such firearms so they'll know where to find them if they decide to confiscate them goes completely against the grain.
Correct me if I'm wrong, because I'm just going from old (and possibly flawed) memory, but I think there's something missing from this.
If I remember correctly, the DC law also prohibited registered handguns from being loaded or even fully assembled within the District of Columbia boundaries.
SO, if your residence was in DC and you had a "properly" registered handgun, you still couldn't USE it and be in compliance with the law.
I think this usually overlooked point was important. IF DC's refusal to allow registration was the sole issue, I don't think it would have resulted in a complete overturning of the DC law. The law itself would not have created a complete ban, (and so would not be unconctitutional) it would be the actions of the DC administration not allowing registration that created an effective ban, not a legal one.
IF failure to allow required registration were the only matter considered, I think it could have, and should have been handled by a lower court, ordering the DC administration to allow compliance with the registration requirement of the law. (now, if DC didn't comply with that order, that would be another case...)
Remember that if there is some way to comply with a law, no matter how onerous or expensive, we are expected and required to do it.
There was no way to comply with the requirements of the DC law and still possess a functional handgun in your own home (if inside DC).
I think it was a combination of both the prevention of required registration and possession of an assembled (capable of being loaded and functional) handgun AT ALL, that pushed the DC law beyond what SCOTUS found Constitutional.
Aguila Blanca
Staff
Oh, you could use it -- but when the bad guys were breaking down the front door you had to reassemble and load your pistol, you couldn't just keep it assembled, loaded, and ready to use.44 AMP said:
Yes, your recollection is correct.