So Far

I have made it through the opinion of the Court, so far. I think it’s a very strong opinion. Stronger than Heller. The Court did not address standard of review, but for a right that is fundamental, that standard has traditionally been strict scrutiny. Before people get too excited, a lot of gun laws are going to be upheld even by strict scrutiny. Heller has already acknowledged that that government has an interest in keeping guns out of the hands of criminals, so there will be laws that will be permissible with that in mind. But strict scrutiny is a high standard, and there is much law that will fail to stand up to it. Will that be what the lower courts use? We shall see. But they can no longer hide from the fact that the Second Amendment, through the 14th Amendment, protects a fundamental right guaranteed to all Americans.

17 thoughts on “So Far”

  1. Off the cuff, strict scrutiny won’t prohibit:
    Carry permits, as long as they are shall-issue and low- to no-cost. Will probably allow for expiry and required renewal. Least intrusive method of ensuring that prohibited persons do not carry (see below)

    Background checks at point of sale. Least intrusive method of preventing prohibited persons from purchasing.

    Banning possession by felons (though may require a tightening of what counts as a felony that causes prohibition to “violent felon”). There are people who shouldn’t be permitted to possess a firearm, some others who shouldn’t be allowed to carry in public; in both cases not all of them should be incarcerated (IMHO – a serial and unrepentant DWI would be a disablement for carriage in public, for example).

    Time/Place/Manner restrictions on carrying. Post Office ban is likely still good, ditto gun-free schools (useless as the bans are). Prohibitions on carrying while intoxicated, likewise. If someplace wanted to ban carriage in an unsafe matter (a la Plaxico Burress) that might fly (depending on the definition of “unsafe”.)

    Registration OK (if profoundly stupid) – tracking straw purchases and ensuring that; should the need to raise the hue and cry occur, the .gov can find the appropriate people.

    That having been said, constitutional != a good idea.

  2. I would have to disagree with Ian in regards to registration. Not only is registration a violation of privacy in my opinion, it is also one of the most restrictive methods of limiting firearm ownership in place today. It’s costly, time consuming, and imposes an unreasonable burden on firearm owners. Just look at the various registration schemes in place today… DC’s, Chicago’s, California’s, etc… And the NFA on the federal level. None of them can be reasonably defended as being the ‘least restrictive’ method of accomplishing ANY compelling government interest. Some would likely fail the ‘narrowly tailored’ test as well.

  3. NJ has, among other things, registration. It took longer for the NICS check than it did for me to “register” the rifle I bought a couple of months back.

    Literally, it consists of either filing one copy of the Permit to Purchase a handgun with the state, or filling out and returning it to the state. The CoE can be printed off the internet and the seller keeps one and one goes to the state. For my own peace of mind I’d gin up a receipt for any firearm I sold ANYWAY.

    That’s about the level of registration I meant. No criminal penalties for the paperwork going missing, unless there is a clear intent to deceive etc. Hence, useless, but constitutional.

    (BTW, bet you didn’t know we have private transfer in NJ, even for handguns. As long as you can display a FID for longarms or a Permit to Purchase for handguns, private transactions are perfectly legal)

  4. Ian,

    With even just intermediate scrutiny the state or local government will have to prove (or at least demonstrate) that any particular restriction is factually the least restrictive means to accomplish the goal. If most states don’t have that particular restriction yet have similar or fewer issues of compelling government interest (safety/crime) then the proposed restriction is prima facia NOT the least restrictive option available on the fundamental right.

    Most states don’t have any registration or purchase/possession permitting schemes and suffer no documentable negative effect. Most states have relatively liberal shall-issue regulations AND allow permitless open carry and have more or less identical or better crime and accident rates as the restrictive states.

    Conversely, the very few states with various registration schemes (ballistic or otherwise), purchase and possession licensing, prohibited gun lists, hard to get may-issue permits and OC bans, don’t have any factual evidence those restrictions accomplish anything in terms of solving crimes vice the majority of even their neighboring states.

    Given the overwhelming documentable results of the majority of states’ liberating experiments in gun rights, the restrictive states will have an uphill fight on their hands to keep most of their nonsense in place. End result, as always, when we get to bring facts to the table gun freedom wins.

  5. Ian said “(BTW, bet you didn’t know we have private transfer in NJ, even for handguns. As long as you can display a FID for longarms or a Permit to Purchase for handguns, private transactions are perfectly legal)”
    Problem is it took me 4 1/2 months to obtain that “Permit to Purchase” that by law is supposed to be issued in 30 days. I received my Florida carry in less time. NJ Firearms laws are just more Nanny State controls on honest citizens while the lawless are alowed to run free.

  6. Hey – you don’t need to tell me that the powers that be have taken a 30-day requirement to issue and negated it. Didn’t take me that long either time I had to file, but it took way longer than the law says. NJ’s moronic laws go well beyond what is sane or constitutional – bring them down.

    Registration is stupid and ineffectual at fighting crime. The primary use for it historically has been to round up registered firearms. Maintianing a registry would be a costly and pointless exercise. But, I don’t see it being unconstitutional; especially if not cast as a crime-control measure, but as a militia measure…

  7. As for the NJ time limit – we should now be able to file in federal court a civil rights suit to force NJ to at least follow their 30-day requirement in issuing paperwork.

  8. Arbitrarty and capricious. i see those words coming up a lot in future gun lawsuits.

  9. I agree that POS registration is safe under McDonald. Any other form of registration is problematic under the Fifth Amendment, not the Second.

  10. Ian,

    I’ll agree that registration to ensure that the militia is properly regulated and equipped is certainly Constututional.

    I’m a bit of an 18th Century history nut, having grown up 20 miles or so from Williamsburg, VA and having started re-enacting (with a group made up – except for myself – EXCLUSIVELY out of Colonial Williamsburg paid historical intrepreters and researchers) in a Rev War group that was doing a local militia impression. So, I’m reasonably familiar with what the standards that traditionally apply to militia to ensure they are properly kitted out.

    Militia registration ensures that if I am called up for duty, I actually have an appropriate gun. Unlike militia inspection, which just proves I could get my hands on an appropriate gun THAT DAY.

    So I will HAPPILY register my militia rifle. And the rest of my militia kit.

    Who do I send the check to for my select fire M4A1 at government cost (plus a small markup)? You know, my militia rifle. Along with my IBA, bayonet, web gear, and Kevlar. And my 210 rounds of USGI M193 or M855 (the civilian overrun stuff doesn’t meet spec even if IDENTICAL production overruns from the same lines, if only becuase it was never given it’s acceptance inspection by Uncle Sam, and that’s part of the contract spec!). . . again, some of this stuff is difficult or impossible to obtain at a reasonable price on the open market these days, so I’ll have to follow the traditional route of buying from the government with a small penalty fee added.

    But that would be a “stand of arms” (for an infantryman) in the meaning the phrase was used in 18th Century military and legal language. Basically, all of the “killing kit”, which I can directly provide, or be forced to buy it from the government at a premium (albeit, possibly also on credit at the same time!); but it doesn’t include uniforms, clothing, food, etc.

    Oh? You weren’t intending to assist me (and every other possible member of the regsitered militia), while still making me pay for it in the end, obtain this stuff if we can’t get it ourselves? Why would you need me to register something I don’t have. . . ?

    Oh? You meant registering my NON-militia weapons? Sorry, no can do, Chief.

    No relationship to the militia whatsoever, so a strict srutiny standard that allows registration to ensure the militia is armed doesn’t apply. And since my 2nd Amendment rights ARE NOT based on their relationship to my performance of militia duties, y’all can blow me before I’ll register those other guns.

    {Evil Grin}

  11. Point of sale registration by itself is no infringement on keeping and bearing a firearm. Requiring filling out and submitting a form similar to the Certificate of Eligibility that NJ requires isn’t much more of a burden, especially if it’s freely available; certainly no more so than requiring a 4473 to be filled out. Maintaining a registry is a waste of taxpayers’ money. None of that makes it unconstitutional.

    Confiscating arms based on the registry is unconstitutional (2nd Amendment violation). Making a felon out of someone who forgets to file his CoE is unconstitutional (8th amendment violation). Using the registry to prosecute a felon for possession is (already) unconstitutional (5th amendment violation). Forcing private sale to go through an FFL is probably unconstitutional, but I’m not as sanguine about that.

    The Constitution is the nuclear weapon of legal arguments. All-powerful, but expensive and inappropriate for certain targets.

    Not all bad ideas are unconstitutional. Maintaining a registry is a waste of time and money. The registry can be used to enable unconstitutional behavior. The same can be said of DMV records or the requirement for telecom companies to build “lawful intercept” capability into the phone system; or for most other databases maintained by various federal, state, and local government agencies. A registry is a database. The existence of a database does not infringe any of my rights. There are ways in which the use or population of a database can infringe my rights.

  12. I don’t see a Fifth Amendment bar to using registration to prosecute a felon in possession. The Fifth Amendment only protects against compelled self-incrimination; it doesn’t protect dunces who choose to incriminate themselves voluntarily or lie on a form (as they’d have to do to get the gun in the first place for POS registration). The Fifth Amendment only becomes a problem for those wishing to prosecute felons for failing to register guns already in their possession.

  13. It’s apparently settled case law that you cannot force felons to register firearms in their possession as that would be forcing self-incrimination, or at least that you cannot prosecute them for failing to register same.

    That having been said, if they are in possession of a registered firearm and become a prohibited person I can’t see using that fact to prosecute after giving them a chance to voluntarily surrender it being a violation.

  14. In fact, it was the Fifth Amendment issues with using the 1934 NFA registration requirement that caused the NFA to “go away” for a brief period, necessitating the Great Amnesty that ensued when the NFA was re-enacted.

    Since the original NFA required the POSSESSOR to register his gun, it was unconstitutional to prosecute a prohibited person for failure to register a gun (and therefore, for possessing an unregistered gun — you cannot prosecute him for that which it is unconstitutional to require him to do), as the original NFA would be requiring him to either lie on teh form (committing a felony), or incriminate himself (by being honest).

    The current NFA requires registration BEFORE taking possession, thus sidestepping the 5th Amendment issue.

    Registration in general IS intrusive, as the government is collecting private information and holding it indefinately. Given the percentage of registration lists that have been used as confiscation lists historically, and the fact that is the ONLY thing regsitration lists are good for, registration lists fail the strict scrutiny or intermediate scrutiny standards, the same as any other restriction on a civil right that has NO practical purpose except the denial and destruction of that right under the color of law.

    The fact that general confiscation is currently held unconstitutional is little reassurance given we are talking about a right which is AT LEAST IN PART, predicated on the idea that it is the true bulwark against a future tryannical government that does not respect the rights of the people — the list is then available to the tyrants who will use it to strip the people of their ability to use the Second Amendment as their final reset switch!

    Denying a person their right to vote on account of race has been illegal since Reconstruction and the 15th Amendment. Yet many states (not just former Confederate ones) routinely violated those rights while “officially” being race neutral in voting — a registration list whose only practical value would be to facilitate violating the people’s (or any indiividual person’s) right to keep and bear arms without infringement is equally as suspect as a literacy test for voting.

    In terms of being a questionable infringement of a civil liberty, ESPECIALLY since we are dealing with a specifically enumerated right, the Consitutional validity of gun registration (or ANY infringement, for that matter) is right up there with blunt racial quotas, or gender prohibitions. In other words, you have a pretty hard row to hoe to justify it AT ALL.

    A case can be made for prohibiting felons under sentence from possessing arms — even if on parole, they are still technically prisoners, and any restriction placed on them is VOLUNTARY, as they can always go back to prison and finish their sentence behind bars if they prefer. (Whether the current lifetime ban is Constitutional is another question, and whether parole for criminals AT ALL is a good idea is another.) You can identify the “compelling interest” the government has in keeping prisoners disarmed.

    A case can be made for prohibiting arms to the legally insane or incompetant. (However, I feel that anyone too crazy to be legally allowed to touch a gun is too crazy to allow out in public. So, if the nuthut thinks you’re sane enough for public release, that should be an automatic restoration of rights.)

    A case can be made for banning private arms in truly secure areas — prisons, courtrooms, mental hospitals that house the committed, etc. I’ll buy that there are other government facilities that MAY fall into that category of “secure facility” — the President has a reasonable risk of assassination from lone lunatics, so I don’t mind not being allowed to wear a gun into the White House. Of course, anywhere they do not bother to establish REAL security (including closely searching ALL visitors, whether physically or with a metal detector) at all access points, that establishes prima facie that the area isn’t really “secure” and an arms ban is not justified.

    I think a case for registration of “machineguns” and “destructive devices” such as explosives used as weapons on in the course of a felony could be justified, given the history of bank robbers during the Great Depression — even with fairly high civilian possession rates of those items since then, crime with legally possessed NFA items has been effectively zero, and convicted felons cannot get legal possession. (So MG and explosive DD registration can be said to have been EFFECTIVE in its purpose. By eliminating AOWs, silencers, short barreled shotguns and rifles, and items classed as DDs purely because of bore size, from NFA controls, the registration might even pass “narrowly tailored”. Those other items were never really serious classes of crime weapons such as silencers or large bore guns, OR they were added to the NFA only because it was supposed to cover handguns as well, and they added AOWs, SBRs, and SBS in order to avoid people avoiding handgun restrictions with a hacksaw.)

    What else would or wouldn’t fly in the NFA world if honest Constitutional interpretation is followed?

    Not a ban on new registrations such as 922(o).

    Not a “tax” so high as to put exercise of a particular civil right out of reach of all but the rich such as the original value of the $200 registration tax, although a tax that covers the actual costs of the registration program MIGHT be justified. (It took an amendment to dump poll taxes.)

    Bans on imports probably pass the sniff test — Congress has the authority to ban the import of machineguns, just as they can ban (or effectively ban via tariffs) sugar imports or Cuban cigars. Bans on true INTERstate transfers without involving a federally regsistered dealer MIGHT pass. Restrictions on who FEDERALLY registered interstate manufatcurers and dealers can do business with probably pass — so long as any law abiding, adult, sovereign individual can make his own and transfer his personal possessions to another law abiding, adult, sovereign individual.

    Requiring a resident desiring to CCW in public to get a “Shall Issue” permit that doesn’t have fees or other appllication requirements that effectively act as a ban? Probably acceptable, provided that unlicensed Open Carry is effectively unregulated.

    Bans (or even restrctions) on “scary” looking guns? Not even close. “Gun of the Month Club” type restrictions on how often one may acquire guns? Right out.

  15. That one sentance should read:

    “What else would or wouldn’t fly in the firearms world if honest Constitutional interpretation is followed?”

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