What is the legal argument for restrictions on firearms in certain cities/states?

[adrian44]

This is something that comes up a lot in my conversations with friends and people in gun shops, but not many have real familiarity with the actual legal reasoning behind it.

As I understand it, the 2nd amendment states quite candidly that no one has the right to interfere with the right of citizens to own and carry firearms. In many states this right is upheld, people are free to purchase, and the state "shall issue" permits to carry absence of certain things such as criminal convections, mental illness, etc.

Still, we know that residents of NYC are largely denied the right to carry, resident of NJ are rarely issued permits, in addition to other states that are supposedly "may issue" states but are "no issue" in practice, such as Hawaii for example.

To me these states are in a glaring breech of the constitution, hence my question is what exactly are the legal arguments used in these places to restrict the rights of citizens? I have no legal experience, but I can very much see myself standing in front of a judge in one of these places, reading him the 2nd amendment, and that will be all that's needed for him to strike these restrictions down. at least I believe that any reasonable person who has basic comprehension of the English language would do that.

Can you shed any lights on what is it that I'm missing?

 

[BarryLee]

While it may be much more complicated I believe that basically the Supreme Court has ruled that individual States can implement reasonable restrictions on firearms. The big debate now is what are reasonable versus excessive restrictions.

 

[Bozz10mm]

Federal, State, County, and City governments have many ways to justify, in their collective minds, restrictions on firearms.

Crime reduction, less danger for peace officers, do it for the children, etc. Mainly, they just want to control everything.

That's all I have to say about that.

 

[Bella]

The Tenth Amendment.

 

[Bella]

The United States Constitution is suppose to regulate and control the Federal Government. The 10th amendment is suppose to give all other powers to the states.

That is in theory, anyway.

 

[Spats McGee]

. . . .As I understand it, the 2nd amendment states quite candidly that no one has the right to interfere with the right of citizens to own and carry firearms. . . . .

That's not what the 2A says.

. . . .Still, we know that residents of NYC are largely denied the right to carry, resident of NJ are rarely issued permits, in addition to other states that are supposedly "may issue" states but are "no issue" in practice, such as Hawaii for example.

To me these states are in a glaring breech of the constitution, hence my question is what exactly are the legal arguments used in these places to restrict the rights of citizens? . . . .

Spats McGee’s Federal Constitutional Primer is a good place to start understanding the underpinnings, if I do say so myself.

. . . . I have no legal experience, but I can very much see myself standing in front of a judge in one of these places, reading him the 2nd amendment, and that will be all that's needed for him to strike these restrictions down. at least I believe that any reasonable person who has basic comprehension of the English language would do that.

Can you shed any lights on what is it that I'm missing?

For your own sake, please don't try that. Constitutional litigation is significantly more complicated than that.

 

[carguychris]

The United States Constitution is suppose to regulate and control the Federal Government. The 10th amendment is suppose to give all other powers to the states.

However, what the states can do with those powers was subsequently limited by the 13A & 14A.

The original question defies an easy and short answer. However, in addition to what Spats wrote, here are some key things to understand:

No right is unlimited under the Constitution; a classic example is that the 1A does not grant a person the right to incite a riot. There have to be boundaries.

Police power over the people has traditionally been held by the states, and by extension, local governments. Thus, the boundaries on Constitutional rights are generally set by the states, but the states' exercise of this police power is limited by the 14A. The key question is to what extent this power is limited.

The application of the 14A as it relates to state governments was critically limited in 1873 by the SCOTUS decisions in the so-called Slaughter-House Cases:

http://en.wikipedia.org/wiki/Slaughter-House_Cases

The 1876 SCOTUS decision in United States v. Cruikshank applied this reasoning to the 1A and 2A:

http://en.wikipedia.org/wiki/United_States_v._Cruikshank

The 2A was further limited by an 1886 decision, Presser v. Illinois:

http://en.wikipedia.org/wiki/Presser_v._Illinois

These cases, among a few others, were the bedrock upon which decades of Jim Crow racial segregation laws in the South were built. They also negatively impacted other civil rights throughout the country.

The good news is that folks have come to realize that these cases were bad law, and the post-Depression Supreme Court has progressively unwound the web of laws justified by them, in a process known as incorporation. However, this process is slow, and the trouble from a 2A standpoint is that it's really only just gotten started within the last decade.

Prior to the D.C. v. Heller decision in 2008, the only significant post-Presser 2A case to be heard by the SCOTUS was U.S. v. Miller (1939), but this decision was famously opaque and inconclusive. The 2A was finally incoporated against the states in McDonald v. Chicago (2012), but this decision is so recent that its long-term ramifications are not clear.

 

[44 AMP]

if you buy a gun, YOU need to secure it, YOU can not let someone besides YOU in control of it, if YOU do, YOU go to jail.

I disagree with the idea that I should go to jail if someone steals my property.

I rather think they should be the one going to jail.

 

[Tom Servo]

Carguychris articulated the 14th Amendment issues better than I could have.

I'd like to add one other factor: the prevailing legal opinion that the 2nd Amendment only protects the right of the states to form militias. Up until the Heller decision, it was widely assumed that the 2A didn't protect any sort of individual right. As such, many states and cities felt they were on solid constitutional ground when they passed various bans and restrictions.

 

[Frank Ettin]

...Up until the Heller decision, it was widely assumed that the 2A didn't protect any sort of individual right. As such, many states and cities felt they were on solid constitutional ground when they passed various bans and restrictions.

And in any case, it's well settled law that constitutionally protected rights are subject to limited regulations. There are certainly many examples in First Amendment jurisprudence.

Modern Second Amendment jurisprudence is very new -- beginning with Heller and McDonald. It's going to take a while and plenty of litigation to sort out the scope of permissible regulation of rights protected by the Second Amendment.

 

[raimius]

In my skimming of recent cases (thanks to more educated posters here), it seems that most cities and states that defend restrictive laws will argue one of a couple things. One is that the interest of public safety is the reason why the restriction was passed. Courts will accept that under what is called "rational basis" scrutiny--basically if the law makes sense in advancing a government interest, it can stand. There is also "intermediate scrutiny" where the law must not only be rational, but it must support an important government interest and be substantially related to that interest. Unfortunately, many judges have been deciding anything "outside the home" (Heller decision language) gets intermediate scrutiny and that public safety is an important government interest and basically any gun law is substantially related to it--thus legal. Some posters here call that the "2nd Amendment Two-Step." (We argue that this is "rational basis" dressed up as "intermediate scrutiny" and applied poorly.)

 

[Aguila Blanca]

Modern Second Amendment jurisprudence is very new -- beginning with Heller and McDonald. It's going to take a while and plenty of litigation to sort out the scope of permissible regulation of rights protected by the Second Amendment.

And in the Heller decision, the Supreme Court affirmed that the states may "regulate" (but not outright ban) various aspects of firearms "keeping" and "bearing." So ... restrictions on firearms (whether it be on types of firearms allowed -- or not allowed -- or on modes of carry) are supported (in general) by the Supreme Court as "regulation," which they apparently think is allowed under the Second Amendment.

Personally, I don't agree, but I'm not on the Supreme Court so what I think doesn't really matter. Any regulation is (pretty much by definition) an infringement, and the clear language of the 2A is that the RKBA shall not be infringed -- period. How the Supremes get from that to deciding that "reasonable" regulations (i.e. "reasonable infringements") are permissible is a complete mystery.

 

[carguychris]

The second amendment is mainly concerned with an oppressive government take over period.. It is not mainly, about sports, hunting, self defense or even really just being able to have your double barrel shotgun. Anyone, with a heartbeat can see that.

This has been described as the "insurrectionist" argument on this forum and elsewhere.

This is an excessively narrow and potentially self-destructive political viewpoint that ignores the facts that the historical U.S. militia is an organ of the government "of the several States", and that the Constitution unequivocally places the militia under federal government control.

Here's what I find when I look up the militia...

Article. I. - The Legislative Branch

Section 8 - Powers of Congress

The Congress shall have Power...

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress...

And...

Article. II. - The Executive Branch

Section 1 - The President

Section 2 - Civilian Power over Military, Cabinet, Pardon Power, Appointments

The President shall be Commander in Chief of the Army and Navy of the United States,and of the Militia of the several States, when called into the actual Service of the United States...

The so-called prefatory or militia clause of the 2A is intended to protect the states by preventing Congress and/or the President from unilaterally disarming the militia, but it does not change the fact that the states ultimately control the militia. Thus, the insurrectionist argument does NOT protect individuals from infringements on the RKBA by state governments; it implicitly advocates the opposite.

The key thing to understand is that the 2A is also intended to protect the individual RKBA independent from militia service, for reasons including self-defense. If the Founders' intent was solely for the 2A to protect the militia, they presumably would have worded it quite differently.

From the D.C. v. Heller decision...

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

 

[rkittine]

If you look at the New York State Constitution and Penal Code a "Firearm" is different that a handgun. Even though the 2008 ruling did set that the 2nd Amendment allowed Individuals to posses a "arms" those 27 word are well short of defining what arms and when they can be used. Based on the 1968 gun control act and about every other gun law other there, there are little if any restrictions on "arms" that were available at the time of writing of the 2nd Amendment. You can posses firearms, including handguns in NYC and with enough clought you can still get a concealed weapon permit, but it is rare. In the balance of the state for all but cities with a population of over 1 million, getting some type of CW Permit is a right that just takes a lot of time and percerverence or a pistol permit consultant. I have had my unrestricted carry permit since 1971.

Bob

 

[44 AMP]

Permit is a right that just takes a lot of time and percerverence or a pistol permit consultant

and this is where many of us disagree. If it takes a "lot of time and..." then its not a "right". It is a privilege.

I grew up in NY, in the Saratoga-Lake George area, and left there in 75. Until I moved to a different part of the country, I felt the NY permit system was right, just, and proper. After living in an area where that system is not used, I can see it as what it actually is, a subtle form of tyranny that has been in place for so long it is the accepted norm in that area.

 

[Dragline45]

I live in MA and it's up to the discretion of the issuing officer in each town to decide who gets a license and who doesn't, some towns are far more lenient than others. Luckily I live in a town that has granted me a Class A unrestricted LTC since I was 21 which allows me to carry and own large capacity magazines, where other towns for example regardless of a clean criminal record will not grant you a carry license. Though in the past few months they passed a bill allowing you to appeal your findings in district court, where the issuing officer who denied you will now have to prove to a judge beyond a reasonable doubt that the reasons you were denied are valid. Before you had to lawyer up and spend thousands of dollars to appeal it.

 

[Aguila Blanca]

Massachusetts is one of a very few states where it's easier for a non-resident to obtain a concealed carry license/permit than for a resident.

They don't make it cheap for the non-residents, though.

 

[Dragline45]

Massachusetts is one of a very few states where it's easier for a non-resident to obtain a concealed carry license/permit than for a resident.

As with everything in this state nothing makes sense. If I didn't have my family and friends here I would move as far away from this liberal dominated state as possible.

 

[P71pilot]

What it comes down to (or should), is that the 2nd amendment is about security. Security today may be different than security 200 years ago. But basically our 2nd amendment legitimizes our freedoms. We are not beasts, and do not poses natural weapons (such as claws, fangs, venom etc..) With which to defend ourselves. This is why we need guns. My life is more important than yours, so if you threaten my life, I am going to take yours.

 

[raimius]

My life is more important than yours, so if you threaten my life, I am going to take yours.

Not so.
The law does not value anyone's life above another. There are situations where one person's actions may either forfeit that right (capital offenses) or where another person may defend with lethal force (as reasonably required to stop an illegal attack).