Which Gun Laws do you think are susceptible to constitutional attack and why?

[Wildalaska]

The political landscape has changed. It changed on Tuesday, May 8th, when the Full Circuit Court for the District of Columbia declined to rehear Parker v. D.C.

Now, unless the Supreme Court hears and overturns the Parker decision (something I'm almost positive it won't do), the case stands as precedent in the D.C. Circuit. What some of you don't understand, is that as precedent, this decision impacts all federal laws dealing with firearms. All.

One of the reasons that the D.C. Circuit Court of Appeals has been called the "Second Highest Court in the Land," is that any decision there can be used in litigation filed in D.C. as binding precedent. Decisions upheld by the D.C. Circuit can affect all Federal Law. It's unique among all the other Circuit Courts.

You want to challenge the NFA taxation scheme? D.C. is now the place to file and argue your case. There is also the conflict between the NFA registry itself and 922(o). The Lautenberg Amendment? At risk.

Further, the entire Congress is now on notice that any legislation they may enact, as regards firearms, may now be lawfully challenged as to it's constitutionality... As long as the challenge is filed in the D.C. district courts.

The same goes for any regulations any Federal organization may have already enacted or may wish to enact. All can now be legally challenged directly upon 2A grounds. Something that was extremely hard to do before this decision.

Some challenges will be upheld, some (perhaps many) won't.

This single case will have far reaching consequences over time. Everyone in the Congress, the Executive branch and all perspective Presidential candidates are on notice.

We have about another 60 days, to see what the City of D.C. is going to do. Getting all fired up over what a Democratic President with a Democratic Congress might do, is rather premature.

As of this moment, the Second Amendment has been declared as a primary right, protected by the Constitution.

The landscape has changed. Time to change your thinking and strategy.
__________________
Al Norris

With the foregoing in mind, what particular gun laws do you think are ripe for attack. Why? How would you attack it? What would the other side say?

And Im talking particular laws, not generalities. Laws that affect you.

WjustcutfingernowevenmorehandicappedA

 

[GoSlash27]

I would say NFA and GCA would be ripe for the picking, as well as all local/state infringements.
Our arguments would center around 2nd Amdt, 14th Amdt, and strict scrutiny.
Theirs...probably the preamble and interstate commerce.
We would no doubt have the upper hand on the strength of our case, where they would have an edge in the rhetorical/ emotional arguments (not to be dismissed lightly).

Better to bring these cases where the judge is appointed rather than elected.

 

[GoSlash27]

I'm sorry...I went general, huh?
NFA, GCA, The current Iowa law regarding concealed carry (the sheriff within each county having unchecked authority to grant or withold CCW for any reason they see fit...or none at all, Iowa restrictions on ammunition types & "destructive devices", and children in supervised possession of handguns. Also, it's a violation to discharge a firearm (even a pellet rifle) within city limits for any reason other than self-defense, hence no shooting ranges in the city Also, and I have no idea why, it's illegal to rent guns for evaluation in our county.

Those are the main ones that affect me. The one I'd like most to attack would be the "may-or-may-not issue" CCW.

So how I'd attack it: I would apply for a CCW permit, and on the line for "why", I'd put in "I'm an American citizen in good standing and I want one" with the full expectation that it would be denied.
Hello lawsuit! But who would I get to represent me?
Our argument would be the 2nd, 14th, and strict construction, with citations of Miller and Parker. Theirs...see above.

 

[DonR101395]

I would have to say in my home state MI NFA restrictions. They have recently accepted machineguns, but because the AG opinion was poorly written(it is being worked, but never should have been an issue), the police refuse suppressors, sbs(which affects me) and DD. Our side would argue 2A and excerpts from Parker v. D.C. Their side would argue the old standby well regulated milita means national guard, 2A is a state right.
In Florida(my current residence) as well as many other states the "gun free zones" i.e. schools, sporting events, bars/restaurants whose alcohol sales equal greater than 50% income. We would argue 2A shall not be infringed and the right to self protection with excerpts from Parker v. D.C. They would argue for the greater good and it's for safety.

 

[FirstFreedom]

Regardless of the particular law attacked

What would the other side say?

That is indeed the relevant question.

The other side will say:

"Yes, ok, we concede that there is an individual right.

BUT.

The right is not FUNDAMENTAL. And therefore strict scrutiny does not apply. Only "rational basis" applies, and therefore anything goes."

Guys, the truth is this. The individual rights victories (which will ultimately lead to SCOTUS victory), though rendering a good feeling, is but a tiny 2 foot hurdle to get over. Not a big deal - it was pretty apparent to anyone with half a brain that US v. Miller, Verdigu-Urtiguez (sp?), etc., all strongly implied individual right.

Having the courts & SCOTUS buy that SCTRICT SCRUTINY applies is for *all the marbles*. This is the 100-story building hurdle. It's the win-or-lose, winner take all stage. If the right is deemed by the scotus to be FUNDAMENTAL, then strict scrutiny will apply, and MANY laws can be annulled. If OTOH, the SCOTUS cheats with a bogus convoluted argument as they are prone to do, and breaks from all history and precedent (clearly showing that the 2A IS a fundamental right), and concludes that somehow the right is not fundamental, then they will apply the rational-basis test or *perhaps* some sort of intermediate scrutiny as they have in gender & mental retardation discrimination cases. Intermediate scrutiny is better than nothing, but if "rational basis" is the chosen test for the 2A, then ALL laws will stand. The SCOTUS has never (not even once) struck down a law under the rational basis test, IINM.

I think the laws that most NEEDS to be attacked first, as the most directly violative of our 2A rights, in order from more-directly-violative to less, are:

1. Lautenberg. The right extends to all non-felons. NOT to all "non-people-getting-divorced-with-a-standard-do-not-harass-the-other-party-restraining-order-againt-them", or to non-misdemeanor offenders.

2. The the 86 ban/moratorium on the registration of machine guns (thank you republicans). Closely thereafter, the TAX on machine gun registration is too high - it's prohibitive to poor folks to the point of being an *infringement* of the right to KBA, IMO. Make it $20 to $50, not $200. And, streamline the paperwork process, requiring the gov't to issue within 3 months, if they cannot find a prohibition (felony conviction), etc., within that time, just as many shall-issue CCW laws are set up. Prevents stalling for no reason or the wrong reasons by the gov't.

3. After that, any and all laws that require a license (prior restraint) on exercising a fundamental right (i.e. concealed and/or open carry of guns in public) - in other words, all CCW laws go bye-bye, and we have a coast to coast Alaska/Vermont.

 

[GoSlash27]

It's my understanding that Parker establishes the 2nd as a "fundamental" right. Even if it didn't, it was my understanding that it's being specified in the BoR also establishes it as such.
Am I mistaken?

 

[FirstFreedom]

Well, I didn't read Parker yet, so to the extent I'm talking out my butt, then I'm sorry. BUT,

-If Parker did say "fundamental", then obviously that is a very very key, good thing.

-Regardless, Parker doesn't "establish" anything necessarily in the long run. Nothing is "established" until the SCOTUS themselves say so (and even then only until the next retirement/presidential appointment.

Note to self: Go read Parker!! Thanks Goslash!

As far as the test for "Fundamental-ness":

-Yes you are right, the SCOTUS is *supposed* to consider, in order to determine fundamentalness:
1. Whether it is included in the Bill of Rights. There is a strong presumption that a right included in the Bill of Rights is indeed fundamental. But it's a rebuttable presumption. Some rights in the BOR have never been established as fundamental - yet (such as the 2A).
2. Whether it is included in the Constitution and Bills of Rights of the 13 original states, and the colonies which preceded them. The 2A is indeed included in many of the original 13 states' Bill of Rights in their respective state Constitutions, indicating fundamentalness.
3. Whether the contemporary writings of the founding fathers showed that they considered the right fundamental at the time of the Constitution in 1789 and the BOR in 1791 (I think).
4. A few other things which I now forget...


But, bottom line, having gone to law school, reading lots of SCOTUS opinions, most notably those on the 4a/5a rights making inroads into those protections to effectuate the legislative branch's goals in the war on some drugs, it seems to me that the SCOTUS will do what it WANTS to do, and then issue convoluted 30-page lip service explaining why - when read page by page, it seems to make sense, but when taken in the big picture, it may make absolutely no sense. And it's frightening to me what the Scotus may WANT to do with the likes of Roberts & Alito taking the place of Rehnquist & O'Connor. Subbing out Alito for Rehnquist is not too bad a trade (though that was not the direct trade chronologically). But replacing the thoughtful and accomplished O'Connor with the seemingly political partisan Roberts is bad mojo for the Constitution in general. But maybe not on 2A rights. Maybe I'm too cynical, but maybe not...

 

[GoSlash27]

I may very well be incorrect about Parker. I should look at that myself

 

[GoSlash27]

Because the right
to arms existed prior to the formation of the new government,
see Robertson v. Baldwin, 165 U.S. 275, 280 (1897) (describing
the origin of the Bill of Rights in English law), the Second
Amendment only guarantees that the right “shall not be
infringed.”

We
therefore take it as an expression of the drafters’ view that the
people possessed a natural right to keep and bear arms...

I think that'd do it.

 

[Hugh Damright]

I don't follow some of the reasoning here ... a law banning handguns in DC was ruled to be unconstitutional, how does it follows that guns must be allowed in bars, or that lautenberg must be struck down, or the GCA or NFA? I would think that the laws in jeopardy now would be city laws that ban handguns ... there are a few aren't there?

 

[Hugh Damright]

Decisions upheld by the D.C. Circuit can affect all Federal Law. It's unique among all the other Circuit Courts.

That seems kind of scary ... wasn't it a three judge panel and a 2-1 decision? If just one judge had voted differently, it could have been 2-1 against Parker ... gosh, it's like a joke ... how many reconstructionists does it take to incorporate the Second Amendment? Two.

 

[Al Norris]

I don't follow some of the reasoning here ...

All of the Circuit Courts of Appeal adjudicate Federal law. But they also adjudicate State (and local) law, since all of the Circuit Courts jurisdictions comprise the various 50 states... All that is, except for the D.C. Circuit Court of Appeals.

It's rather special, in that it's jurisdiction does not include anything other than the City of D.C. The only appeals that it hears from, is from the D.C. District Courts themselves (which are themselves Federal Courts).

What's so special about D.C.? It is the only city that is specified within the Constitution itself. It is wholly a Federal property. It is wholly controlled by the Congress of the United States. It is the seat of the entire Federal Government.

Anywhere else in the U.S., you might have to go through several layers of appeals, long before you get a shot at the particular Circuit Court for your jurisdiction. Not however, in D.C.

In D.C., you file your case with the Federal District Court. The only appeal from a ruling by the District Courts is the D.C. Circuit Court of Appeals. Then it is a direct line to apply for certiorari to the SCOTUS.

As I said, above, D.C. is also the seat of the Federal Government. Because of this, any Federal legislation may be challenged in the D.C. District Courts. From there to the Circuit. From there to the Supreme Court.

It is the one place where, if you win, the win affects Federal Law/Regulation almost everywhere else in the U.S. I say "almost," because few other Circuit Courts will ignore precedent set in D.C. as regards interpretation of Federal Law or Constitutional issues. Why? It is almost guaranteed to get a SCOTUS hearing and the SCOTUS rarely overrules the D.C. Circuit. Yes it does happen, but rarely.

Here in the instant case, a panel of 3 judges from the Circuit was assigned the appeals from District Court. This panel of judges in a 2-1 ruling, held that the Second Amendment protected a fundamental individual right to keep functional firearms (not just handguns, mind you) within their homes for self defense purposes. Like other rights protected by the BOR, the opinion held that the right predated the Constitution, the formation of the United States itself. The Court held that any law or regulation that completely banned firearms from the people was unconstitutional. The Court further held that any law that required the people to keep their firearms in a condition that rendered them unserviceable as to their lawful purpose, was also unconstitutional.

a law banning handguns in DC was ruled to be unconstitutional, how does it follows that guns must be allowed in bars, or that lautenberg must be struck down, or the GCA or NFA?

While the Circuit did not rule on bearing arms, it is not much of a stretch to conclude that for self defense purposes, no law or regulation can completely disarm a lawful person going about his lawful business.

Does the Congress have the power to tax? Absolutely. But can they tax the implements of the right? If it's held that it can, then what should be the proper tax? One that does not generate revenue, is not a tax, but a ban. That is, is the NFA even constitutional in light of Parker? Can you see the Congress being allowed to tax your speech?

And how about the NFA registry? 922(o) has already been ruled to invalidate portions of the NFA... So can the registry be reopened? After all, a pretty good argument can be made that, that part of the '86 FOPA created an artificial price increase in the exact guns that were to be taxed. Which, incidently, are the exact type of firearms that Miller said were protected!

Similar arguments can be made for suppressors and other types of NFA firearms.

Again, we are only talking about Federal law here.

Nothing in this ruling applies to the States themselves. Anything there, would have to fought on different grounds. Incorporation will come, but it won't be as easy as some think. Much groundwork will have to be laid.

As for the GCA, I suspect much of that will be upheld.

NICS checks? Upheld. It is a mere inconvenience. It is narrowly tailored to achieve a legitimate goal. It will survive strict scrutiny.

If just one judge had voted differently, it could have been 2-1 against Parker ... gosh, it's like a joke ...

Just like one more vote and Raich (or Kelo) would have been reversed. Is there some kind of difference here?

how many reconstructionists does it take to incorporate the Second Amendment? Two.

Like it or not Hugh, the 14th is the law of the land.

 

[publius42]

Just like one more vote and Raich (or Kelo) would have been reversed.

Raich was 6 to 3, with O'Connor writing for herself, Rhenquist and Thomas concurring in most of her opinion and in judgement, and Thomas also writing separately.

Not that it really matters.

 

[GoSlash27]

Hugh,

I don't follow some of the reasoning here ... a law banning handguns in DC was ruled to be unconstitutional, how does it follows that guns must be allowed in bars, or that lautenberg must be struck down, or the GCA or NFA?

Because Parker establishes the 2nd as an individual right and (ostensibly) a fundamental right as well. It doesn't just strike down handgun bans.
That puts everything on the table, and the grossest violations don't necessarily involve handguns.
HTHs.

 

[PPGMD]

With the Parker decision ruled that the 2nd amendment truly is a individual right, combined with the Miller ruling I think that it's quite likely that if the NRA fights it we could get the following rules declared unconstitutional:
The importation ban in GCA
The new registration ban in the FOPA
Outright bans of certain guns such as the 50BMG
Chicago Handgun ban

I highly doubt that the NFA would be repealed, it's a regulation, no outright bans.

 

[Al Norris]

See what happens when I rely upon just my brain for memory?!! Thanks for the correction, publius42.

PPGMD, the NFA is a tax law.

 

[Eghad]

The Parker case established the Second Amendment as a fundamental right as said above. They also said that firearms could be regulated. As long as a law does not prohibit you from buying it for the home for self defense if you meet the eligibility requirements. I don't think the courts would overturn it.

As far as the NFA and how it effects pricing I don't think that argument would fly. Despite the NFA people would still be able to purchase a firearm to protect themselves because the majority of them are not effected by the NFA. I dont think I would like to appeal any of the current firearms laws in the DC court unless they prohibit ownership by eligible persons under the law. The NFA doesnt prohibit you from buying a NFA firearm if you meet the requirements.

As far as Lautenberg you might get some grip with an ex post facto argument. You had to commit an offense of domestic violence to come under Lautenberg. There might be some wiggle room for Lautenberg but I doubt it.

 

[Al Norris]

As far as the NFA and how it effects pricing I don't think that argument would fly. Despite the NFA people would still be able to purchase a firearm to protect themselves because the majority of them are not effected by the NFA.

Really? How much would you have to pay for a suppressor if you didn't have to pay the $200 tax? Think they might be a "tad" cheaper? Cheap enough that the average gunnie might be able to afford one? Should we mention that they help to protect your hearing? And everyone around you?

Consider the cost of a new shotgun barrel. Add in the $200 tax just to cut off a few inches.... Wouldn't it be nice to be able to just buy the dang thing, already fixed up?

A good solid argument can be made, on just those two items alone, that the Tax is a prohibition and not a revenue stream.

Now add in the paperwork and time waiting for approval. Together they all add up to a chilling effect on a fundamental right.

As for Lautenberg, it's a misdemeanor charge. Not a felony. Have an argument with your ex and get charged and convicted for "domestic violence." For calling your ex an [deleted expletive], you lose your right to keep and bear arms forever? For name-calling or using a loud voice... This is reasonable?

Is it reasonable that a TRO can be issued without any proof that you threatened violence? Without any rebuttal on your part. For that you lose your rights.

Eghad, you really need to look at what is called "domestic violence" nowadays.

As for the elimination of 922(o) and the reopening of the NFA registry, I could make an argument there also. After considerable thought, it is not an argument I would make first. I would wait until after several of the other arguments had a chance to percolate through the system.

I'm thinking a good strategy would be to attack several other laws first. Get the 2A incorporated within the 14th. With that out of the way, State and local laws could be challenged. Build upon your successes, then go for the big money. Remember, this isn't just about laws that may or may not be constitutional. It is also about politics. Strategy counts.

 

[Samurai]

I think any law that limits what type of weapons you may or may not own is constitutionally susceptible. Regardless of whether certain people think we should or should not be allowed to carry weapons in public, most everyone in America agrees that the 2nd Amendment grants people the right to own weapons. Restrictions on ownership of high-capacity magazines, full-auto weapons, etc. should be struck down.

(That said, I fully support a law saying that large quantities of highly explosive material should not be stored in a residential area.)

 

[Eghad]

Really? How much would you have to pay for a suppressor if you didn't have to pay the $200 tax? Think they might be a "tad" cheaper? Cheap enough that the average gunnie might be able to afford one? Should we mention that they help to protect your hearing? And everyone around you?

Consider the cost of a new shotgun barrel. Add in the $200 tax just to cut off a few inches.... Wouldn't it be nice to be able to just buy the dang thing, already fixed up?

As far as the NFA and Lautenberg I have no love for them either....

Is a supressor necessary to defend yourself? Is a shortened shotgun barrel neccesary to defend yourself?

How does the NAF prevent a eligible citizen from buying a firearm for defense of himself in his home? It doesnt other than the fact that he maybe could not afford a silencer or a shorter shotgun barrel. He could still afford the basic firearm. NAF does not prohibit a person from owning a firearm

As far as Lautenberg I dont agree with it but it is a law. I dont think its a fair law and needs some changes. Lautenberg prohibits you from owning a firearm if you have been convicted of a midemeanor or felony domestic violence act. I am assuming that if you were convicted of an offense covered under Lautenberg a person recieved due-process? Therefore, the conviction is what prohibits a person from owning a firearm under Lautenberg. Kinda hard to make an argument against that in the DC Court in my opinion as you would basically be arguing that the state's right to decide what constitutes domestic violence should be limited. If you want Lautenberg changed or killed the best attack is through a legislative process.

In my opinion the DC Court ruled that a govermental body could not prohibit a eligible person under the law from owning a firearm for home defense under the Second Amendment which is a individual right. That the govermental body has every right to regulate firearms sales and ownership as long as the laws do not prohibit ownership to qaulified persons. That seems to be a fairly narrow ruling. It reminds me of the chute we had back on the farm for giving cattle medicine, the cow ran in and had one way to go when she popped her head out the gate we levered down the doors to catch her neck so she couldnt move around much. The cow then was subject to getting a dose of medicine she didnt like. We dont like the laws that regulate firearm ownership but we have to live with them till we get them changed.

Our opinion was aksed....im not a legal eagle or lawyer but I read regulations everday looking for loopholes and answers. Looking at the Parker ruling I dont think the DC Court is a venue for any action against NFA or Lautenberg at this time. I could be wrong because sometimes a court is higly unpredictable and I wouldnt be sad about being wrong.

So how many cases against federal firearms regulations have filed at the the DC Court so far?