The States Weasel To Preserve Gun Regulation

[casingpoint]

Ordinarily, this should read something like "States Position To Preserve Regulation". But there is something specious sounding the 31-state amicus brief to SCOTUS in the McDonald v Chicago incorporation case about the assertation states rights to regulate handguns won't be affected by a verdict for the plaintiff.

because they are sovereign governmental bodies, with strong interests in preventing crime and in maintaining their extant regulations on firearms, the amici States represent interests unique from those of Petitioners. And the amici States are well positioned to address any federalism concerns regarding the application of the Second Amendment to state and local governments.... the amici States firmly believe that the incorporation of the Second Amendment presents no [federalism] concerns.
Denying local governments the power to nullify the Amendment will not increase federal power, mandate any state action pursuant to federal directives, or
preclude reasonable state and local regulation of firearms. It will simply prevent local governments, like the federal government, from abrogating the fundamental, individual right to keep and bear arms.

http://www.nraila.org/media/PDFs/litiga ... te_ags.pdf" onclick="window.open(this.href);return false;

[Charles L. Cotton]

Ordinarily, this should read something like "States Position To Preserve Regulations". But there is something specious sounding the 31-state amicus brief to SCOTUS in the McDonald v Chicago incorporation case about the assertation states rights to regulate handguns won't be affected by a verdict for the plaintiff.

because they are sovereign governmental bodies, with strong interests in preventing crime and in maintaining their extant regulations on firearms, the amici States represent interests unique from those of Petitioners. And the amici States are well positioned to address any federalism concerns regarding the application of the Second Amendment to state and local governments.... the amici States firmly believe that the incorporation of the Second Amendment presents no [federalism] concerns.
Denying local governments the power to nullify the Amendment will not increase federal power, mandate any state action pursuant to federal directives, or preclude reasonable state and local regulation of firearms. It will simply prevent local governments, like the federal government, from abrogating the fundamental, individual right to keep and bear arms.

http://www.nraila.org/media/PDFs/litiga ... te_ags.pdf" onclick="window.open(this.href);return false;

I'm not sure what you are saying, but the amicus brief filed by the states is arguing for incorporation of the Second Amendment to the states. Heller made it clear that some regulations will be constitutional, so the Second Amendment will not bar every state regulation, even if incorporated. If Chicago wins the case, then the states can do anything and everything they want subject only to restrictions in the state constitutions.

Chas.

[casingpoint]

Chas. Cotton wrote

I'm not sure what you are saying

LOL. This quote of James Reston of The NY Times seems apropos here: “How can I know what I think until I read what I write?”

But, allow me to attempt clarification:

Ordinarily, I would think the States would be against an increase in federalism with respect to gun legislation. But here they are engaged in an impromptu argument for it while holding it really won't constitute an increase in federalism at all. The latter is pure bunk.

The States seem to be saying the fed can have it's Second Amendment incorporated against them, and the States will continue to regulate guns as they see fit. That turkey is going to have a hard time flying without losing some weight. The Seventh Circuit has in another decision hinted that the appropriate standard of review for gun regulation is strict scrutiny. Such a choice in scrutiny could mean the end to significant amounts of local regulation.

SCOTUS didn't go beyond saying a few basic regulations might be preserved. However, the thirty one states signed on this amicus brief and, it seems, every government official from a heavily regulated area, has interpreted this to mean unrestricted regulation will be the order of the day.

In the advent Chicago wins the case, unbridled regulation will be the order of the day. I don't think it will go that way. But if enough Supremes decide with their hearts rather than their heads, Obama-style, it could come to pass.

Against my better judgement, I'll proceed to post this now, and read it later to find out what I said...

[jimlongley]

Chas. Cotton wrote

I'm not sure what you are saying

LOL. This quote of James Reston of The NY Times seems apropos here: “How can I know what I think until I read what I write?”

But, allow me to attempt clarification:

Ordinarily, I would think the States would be against an increase in federalism with respect to gun legislation. But here they are engaged in an impromptu argument for it while holding it really won't constitute an increase in federalism at all. The latter is pure bunk.

The States seem to be saying the fed can have it's Second Amendment incorporated against them, and the States will continue to regulate guns as they see fit. That turkey is going to have a hard time flying without losing some weight. The Seventh Circuit has in another decision hinted that the appropriate standard of review for gun regulation is strict scrutiny. Such a choice in scrutiny could mean the end to significant amounts of local regulation.

SCOTUS didn't go beyond saying a few basic regulations might be preserved. However, the thirty one states signed on this amicus brief and, it seems, every government official from a heavily regulated area, has interpreted this to mean unrestricted regulation will be the order of the day.

In the advent Chicago wins the case, unbridled regulation will be the order of the day. I don't think it will go that way. But if enough Supremes decide with their hearts rather than their heads, Obama-style, it could come to pass.

Against my better judgement, I'll proceed to post this now, and read it later to find out what I said...

I hope you have come back and reread, because it appears to me that instead of clarifying, you have muddied.

This is the states arguing for incorporation, this is a amicus brief that has been subject to a great deal of research and scrutiny, it is hardly "impromptu" or an approach to new federalism.

Another problem with your posting is that it is out of context - the arguement you present is based on an excerpt from the fifth and last paragraph of a chapter presenting an argument against this being an increase in federalism, it has to be considered as part of the whole, not stand alone.

The states that filed all have somewhat less restrictive gun control laws than the others, which I guess could be classified as an understatement, and they have little fear of seeing their CHL. CWP, and even open carry laws affected by incorporation. This may be so, but it also may not, incorporation could wind up sweeping enough, in the end result, to eliminate CHL laws, but it could also mean that every state would be required to have CHL laws and recognize all the others.

Many years ago some states had driver's license laws that allowed kids as young as fourteen to drive under some circumstances, but even though there was supposed to be universal acceptance of driver's licenses, NY still didn't recognize AZ's 14 year old's license, because their minimum age was 16. The states got parity at certain minimum levels. The same with marriage licenses, you could get married at younger ages in some states than others, and although marriages were generally recognized across state lines, but only over a common minimum age.

So there is every possibility that the playing field will be levelled by incorporation, but the level may be somewhere above our heads, or it may be right down where a lot of us hope it will be.

Arguing that the states have some hidden agenda is ingenuous and pays no attention to the whole of the brief.

Of course, "reasonable" is in the eye of the beholder too.

[casingpoint]

Let me check with Jack Daniels on all this again, and I'll get back to you when I'm able...

[chabouk]

I hope you have come back and reread, because it appears to me that instead of clarifying, you have muddied.

I thought casingpoint made a clear argument: that the 31 states are arguing for incorporation, yet all expect to retain whatever restrictions they currently have.

Anything short of an outright ban would be consistent with Heller. Other than Chicago, and any Chicagoland cities that also ban handguns, nothing will change in Illinois, where there is no legal way for a citizen to carry a handgun, even if the Court incorporates the 2nd via McDonald.

Incorporation is the first step, before clarifying the limits of the 2nd. There will be decades of future litigation before the matter is settled.

[jimlongley]

I hope you have come back and reread, because it appears to me that instead of clarifying, you have muddied.

I thought casingpoint made a clear argument: that the 31 states are arguing for incorporation, yet all expect to retain whatever restrictions they currently have.

I d not see that as clear at all, and his specious reply "

Let me check with Jack Daniels on all this again, and I'll get back to you when I'm able...

indicates that he is not interested in serious discussion of the issue, so I consider the case closed and see no reason to debate the point further.

And what the heck is an "assertation" anyway?

[The Annoyed Man]

And what the heck is an "assertation" anyway?

According to the J Daniels Dictionary, "assertation" means that he's drunk, and you're probably right... ...but in the morning, he'll be sober, and you'll still probably be right.

[shootthesheet]

With properly written opinions by the SCOTUS Judges this should do as the constitution was meant to do and restrict ALL governments from restricting this recognized individual civil right to the level of the First Amendment or greater. Even the states some consider "gun friendly" very much have unconstitutional laws such as restricting carrying of a handgun and instead selling that civil right as a privilege. In order to properly affect the states the Judges need to go beyond their desire to moderate and clearly outline their opinions, at least those on the winning side, to plainly and clearly convey that no government has the ability to restrict citizens in any way except where major violent crime has been committed. They must return to the truth that laws governing guns only restrict the law abiding and are both unconstitutional and do not apply the law equally but only apply to the otherwise law abiding who are very often trapped in the web of governments hostile to this civil right.

The 2A is as broad of a right as any other and for any government or court to restrict it without very good cause is in fact government tyranny against us and as much an abomination as laws that restricted rights because of race, color or sexual orientation. I don't really care what the opinions of these 31 states are because the vast majority if not all of those 31 are guilty of enacting and enforcing laws that deny Americans of this civil right. We should press this issue as hard and long as those who bravely fought for racial equality pressed in the 60s and 70s of the last century.

[casingpoint]

the vast majority if not all of those 31 (states) are guilty of enacting and enforcing laws that deny Americans of this civil right(to weapons)

Should SCOTUS elect to employ the strict scrutiny standard, all existing regulations will from that point forward be presumed unconstitutional. This is a different playing field than the states are accustomed to, and the deck is really stacked against them. A challenge to an existing regulation will then be fairly economic to pursue. Yet, states and munincipalities will be faced with an expensive and cumbersome burden of proof in order to validate their regulations under the Second Amendment.

I regret to report that my co-consul, Mr. Daniels, was unable to add anything to what I have already posted. And perhaps better that he could not at the present time.

def.: assertation-an assertion, statement of opinion
http://dictionary.reference.com/browse/assertation" onclick="window.open(this.href);return false;
That's some old school English. Just because it's old doesn't mean it won't work.

[The Annoyed Man]

def.: assertation-an assertion, statement of opinion
http://dictionary.reference.com/browse/assertation" onclick="window.open(this.href);return false;
That's some old school English. Just because it's old doesn't mean it won't work.

I'll be dawg... you learn something new every day.

Nuthin' wrong with "old-school," as anybody who carries a 1911 will tell you.

[C-dub]

I must be missing something.

If the 2A is incorporated, like the 1A, then the states cannot restrict our RKBA no more than they can infringe upon our 1A rights. Right? It would seem logical that the states would be against this. No? I'm all for it, but I don't understand the motivation of the states to back this. Would it not be true that if a state put some kind of restriction on our RKBA, such as requiring a license for OC or CC or even an age minimum for that matter, that it could be deemed unconstitutional by the SCOTUS if someone were to ever take it that far?

[casingpoint]

I must be missing something.

No, you aren't missing a thing. You're spot on.

def.: spot on- new school English.

[C-dub]

Okay. So, if this is the case, then why are the states going along with this? If they do then why wouldn't they just change their laws on their own? Ahh! I may be on to something here. Do they think it will be easier to get the SCOTUS to rule on this vs. changing the laws in each state?

[chabouk]

I must be missing something.

If the 2A is incorporated, like the 1A, then the states cannot restrict our RKBA no more than they can infringe upon our 1A rights.

They'll be able to infringe consistent with any limits allowed by the Court, just like with 1A. Obscenity laws, time/place/manner restrictions, "free speech zones", etc., are largely upheld.

If the Court declares 2A is incorporated, and rules RKBA is a fundamental right, then strict interpretation will apply, and few restrictions will be allowed (only when the state can demonstrate a compelling interest).

I don't expect them to rule on scope during McDonald. Going by history, it will take a series of cases, some holding that certain restrictions are permissible, while others are judged too severe. It will probably take a couple of decades to settle out.