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View Diary: Why the gun debate bothers me (19 comments)

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  •  necturus - I don't think Heller said that at all (5+ / 0-)

    In Heller the SCOTUS confirmed that we all have a constitutional right to own and posses guns. However, the Court also gave wide latitude to local, state, and federal legislatures to regulate guns, as long as they didn't infringe on the basic right of ownership and possession in our homes. This flexibility gives big cities like DC, NYC, Chicago and others to have very different restrictions than we will find in rural Montana.

    "let's talk about that"

    by VClib on Sat Jan 19, 2013 at 08:10:27 AM PST

    •  That lattitude may or may not be very wide. (4+ / 0-)
      Recommended by:
      VClib, notrouble, oldpunk, BlackSheep1

      1) Since the scope of the right, and the level of scrutiny applied to its protection, were not before the Court, al that stuff is dicta. Potentially useful for tea leaf reading and the general illumination of thought processes, but not more than that.

      2) McDonald matters as much as, and in some ways more than, Heller. Pay particular attention to the description of the 2nd Amendment right as "fundamental." This is not dicta, as such a finding is necessary to get to Due Process Incorporation. It's also very important going forward. That one word shifts the landcape dramatically.

      3) While we don't know what standard of review we're going to get in regard to the right to arms, we already know that rational basis review is out, as is the "interest-balancing" method advocated in the Heller dissent. The Ezell case and the recent Illinois carry ban case out of the 7th Circuit are particularly interesting in this context. I think we're going to end up in the vicinity of 1st Amendment scrutiny, where infringments of the "core" of the right, (political speech in the 1st amendment case, self-defense in the 2nd,) are subject to strict scrutiny, and peripheral issues, eg commercial speech, get intermediate. I know that strict scrutinyl is where Alan Gura is going, and he's got a pretty good record so far... I wouldn't bet against him.

      4) The gun control organizations really stepped on their dicks when they chose to focus on the "in the home" language in Heller. Granted, they needed some place to hang their hat after a ruling that was a disaster for their point of view, but that was a bad move... it was very clearly not written as a limitation on the scope of the right, and no subsequent court has, that I know of, considered it so.

      Where will all this leave us? I'm obviously predicting here, but this is what I think:

      1) Carry laws are going to have to be "shall issue", with method of carry (open vs concealed) up to the States, likewise training requirements, so long as they are not so difficut as to unduly burden the excercise of the right. So, "OK, you can get a carry permit, but it's going to cost you 10 grand, a year of classes, and a million dollars in liability insurance," or other schemes designed to make it so difficult to get a permit that nobody will bother, aren't going to fly.

      2) An assalt weapons ban won't survive. Magazine restrictions might... I can see them getting intermediate scrutiny, but how that would fall I don't know. Intermediate scrutiny is kinda vauge. Waiting periods, at least for 2nd and later gun purchases, aren't going to make it. For a first gun, maybe... but I doubt it.

      3) Requiring all sales to go through an FFL has both 2nd Amendment and Commerce Clause issues. I've got no idea where this would end up.

      4) Licensing of gun owners won't fly... the government cannot require a license to exercise a fundamental right. Ditto punitive gun and ammo taxes.

      5) Machine gun regs are pretty safe. The most I can see is repealing the 1986 registry limit, and maybe requiring states to allow whatever is allowed under Federal law... but even that's a stretch.

      I'm an informed layman, not a lawyer, but this is what I see. The next couple of years should give us all a lot more information than we have now.

      I'm going to write a diary on all of this, I just haven't gotten off my ass to do it yet.


      "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
      "Dissent is patriotic. Blind obedience is treason." --me

      by Leftie Gunner on Sat Jan 19, 2013 at 12:08:07 PM PST

      [ Parent ]

      •  LG - I think you have a very good start on (2+ / 0-)
        Recommended by:
        notrouble, BlackSheep1

        your diary. I mostly agree with your analysis and am very interested in the 7th Circuit carry ban case. That will tell us a lot about where this particular Supreme Court will draw some of the boundaries.

        "let's talk about that"

        by VClib on Sat Jan 19, 2013 at 02:09:42 PM PST

        [ Parent ]

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