The States Weasel To Preserve Gun Regulation

[casingpoint]

C-dub,

Now you are reading too much into it. The States would like to keep their regulations in place plus retain the ability to expand them.

While the brief rants on about the desirability of encroaching federalism if it means the States keep their regulatory power over handguns, it conveniently ignores the aspect of scrutiny and the degree which may be applied.

Unfortunately, chabouk, fundamental rights do not appear to always get strict scrutiny. This is advanced in one of the original Heller briefs. The authors make a strong case against strict scrutiny of fundamental rights in many instances.

The SCOTUS dicta in Heller outlined a very narrow field of exceptions to the Second Amendment which the regulators have taken to mean that most if not all existing regulations will survive scrutiny.

I'm with chabouk in that I believe strict scrutiny will apply to Second Amendment restrictions, and this is hinted to be the case by a recent Seventh Circuit decision, but it is my no means a sure thing until the Court rules.

[srothstein]

I just wanted to add that we may all be reading too much into the AG's signing the brief. It may not mean anything other than there are some smart politicians out there trying to curry votes. The attorneys general do not, generally, make laws. They may interpret them, which in the case of Texas carries the weight of the law until a court decides otherwise. This is not true in all states though.

If the AG is an elected official instead of an appointee, he may be signing on just to curry votes. He may do this thinking the case has no chance of winning, or because he thinks SCOTUS is going to decide that way anyway (the find out which way the wind is blowing and get in front of it type of politician).

When we ask ourselves why the states would do this, I would point out that it is not the state as a whole in many case, but the AG doing it for the state. This may not be what the legislature would do or want done (they have little control over the AG directly). It may or may not be what the Governor would do or want done (depending on the state and how much direct control he has over the AG). And it may be because they see different legal and political strategies for fighting for gun control later on than we do. We keep talking about strict scrutiny, but if it is incorporated as an immunity or privilege (like Gura asks by overturning the Slaughterhouse cases) then we may not have a valid test at all. Strict scrutiny might only be a valid test under the due process clause. With the immunities and privileges clause, there are no currently defined tests and the AG's may think they can argue for something less than strict scrutiny under this clause.

As in any chess game, in politics you must stay one or several moves ahead of your opponents. There are way more possible future strategies for the gun rights/gun control chess game than I can think of right now. I am content to let the much smarter players take the field for me, while I cheer them on from the sides. I appreciate the people and organizations involved in this, assume they know what they are doing, and strongly support them. If the NRA and TSRA say the AG's signing the brief is a good thing, I will be content with that for now.

[Charles L. Cotton]

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

Correct.

After making my first post on this thread, I've tried to stay out of it. I must confess that even my first post was really in response to the title "The States Weasel to Preserve Gun Regulation" that is a great example of the principle that "no good deed goes unpunished."

Here are the simple and controlling facts.

• We won Heller by one vote.;
  Incorporation will fail if it is argued that the Second Amendment will prohibit any and all gun laws;
  The only issue before the Heller Court was a total ban on handguns (the license to carry in one's home was not a true issue);
  The scope of the Second Amendment's protection will be determined in future federal litigation;
  If the Second Amendment is not incorporated, then the states can pass any restrictive gun laws, subject only to their own constitutions;
  The strict scrutiny concept is unfortunately dead and the S/Ct. uses any standard it chooses and applies it in any way it wishes in any given case.

If the States had gone to the Supreme Court with a brief that argued the Second Amendment should be incorporated and that it prohibits any and all gun laws, it would be the best thing the City of Chicago and gun control advocates could have hoped for in this case. If the goal of the states was to retain the ability to pass any and all gun control laws they choose, then they would have filed a brief that argued against incorporation. By arguing for incorporation, the states are asking to subject to whatever restrictions the Second Amendment places on the federal government. This is not the act of a weasel; it is the act of men and women who are trying to apply the protection of the Second Amendment to the states.

Instead of calling the AG's at issue "weasels," we should be expressing our appreciation for them taking a stand for the Second Amendment.

Chas.

PS: Stephen, my post follows yours, but it is not in response to yours.

[casingpoint]

On page 36 of their brief at http://www.nraila.org/media/PDFs/litiga ... te_ags.pdf" onclick="window.open(this.href);return false;, the States note, "State and local experimentation with reasonable firearms regulations will continue under the Second Amendment."

That is a far cry from what SCOTUS said in Heller. Being as SCOTUS listed only a few rather narrow regulations in that would be exempt from Heller, the States sound mighty assumptive and self serving with such a statement. Herein lies the weasel factor. The States are in essence saying, "The Fed can have it's cake, and we can have our cake, and we can both eat our cakes and have them at the same time."

Just what is the appropriate constitutional scrutiny for Second Amendment cases seems to still include strict scrutiny as an option:
http://law.marquette.edu/facultyblog/20 ... maybe-not/" onclick="window.open(this.href);return false;
http://lonelymachines.org/2009/11/19/us ... standards/" onclick="window.open(this.href);return false;

There is nothing in the Heller decision by Justice Scalia indicating otherwise. Indeed, Scalia writes, "He (Breyer) criticizes us for declining to establish a level of scrutiiny for evaluating Second Amendment restrictions."

Further, Scalia adds, "...since this case (Heller) represents this Court's first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field..."

So, yes, there is more than likely going to be lots of future Second Amendment litigation following incorporation, if that is the outcome of MacDonald.

[wheelgun1958]

I just wanted to add that we may all be reading too much into the AG's signing the brief. It may not mean anything other than there are some smart politicians out there trying to curry votes. The attorneys general do not, generally, make laws. They may interpret them, which in the case of Texas carries the weight of the law until a court decides otherwise. This is not true in all states though.

The AG NEVER makes law. That is up to the Legislature.

[C-dub]

Okay. That all makes sense. So, now all we have to do is keep defining what "reasonable" is? Have we even defined what "is" is yet?

[casingpoint]

Have we even defined what "is" is yet?

Sonia Sotomayor is going to do that. It falls into that five per cent category Barak Obama says has to come from the heart. And before the MacDonald incorporation case is over with, she could have the entire SCOTUS in caridac arrest.