Daley’s strategy is going to be to give as little ground as possible, in hopes that he can go as far as the courts will let him. This strategy probably won’t end well for gun rights. Personally, I think Congress should exercise its enforcement powers under 14th Amendment powers to force the issue. Truth is, Congress could have problems with the ruling in City of Boerne v. Flores in this case, but I don’t believe the Supreme Court should have a monopoly on interpreting the constitution, even if I do believe the Court would be correct in ruling it is the ultimate authority in that matter. Would Congress passing a law preventing gun bans, rationing, and zoning that restricts gun shops pass the “congruence and proportionality” test of Boerne? I say pass it, then we’ll see if the Courts want to disagree with Congress on the matter.
UPDATE: For specific language, how about something like this added to the Gun Control Act:
No state orÂ municipality may prohibit the possession, purchase, sale, acquisition, transfer, or transportation of firearms in common use for lawful self-defense or sporting purposes. Firearms in common use for lawful self-defense or sporting purposes shall be defined as any handgun, rifle, or shotgun as defined in section 921 of this chapter, but shall not include any firearm as defined under section 5845 of the Internal Revenue Code.
In my opinion this language would minimize the risk of invalidation under Boerne, because it’s using the Court’s own “common use” language, and the preemption here is limited only to non NFA items. In essence, Congress is deciding to define what firearms are in “common use” and my not be prohibited. This does not address carrying firearms, but you could put that in there. This doesn’t prevent regulation, but it does prevent bans. This leaves to the Court to decide on the matter of regulations, including licensing, point-of-sale qualifications, etc. The Supreme Court strongly hinted bans are off the table. All Congress is doing here is defining what “common use” means, which should be in Congress’ prerogative.
I know some will complain that we don’t get machine guns or NFA items here, but this does not prevent in any way the Court ruling that such restrictions run afoul of the constitution. Nor does it prevent Congress from changing the NFA later to remove them from the definition ofÂ firearm. The goal is to get gun bans off the table completely. Let’s settle that law.