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Window_Seat
02-02-2010, 1:56 PM
Yet, another picking of the brains on incorporation. Of course, if it's a dupe, please point me to the right thread, otherwise after a search, I found no such question, unless it's buried in large threads.

Assuming we are successful after McDonald & Nordyke, what are the chances / priorities that we attack the registration aspect of HG, OLL, etc. purchases? Do we go after the registration requirements, and make a case against it? Is it possible to remove that registration from the DOJ database? Just trying to pick brains.

Erik.

wildhawker
02-02-2010, 2:02 PM
What registration for OLLs?

Firearm registration, generally, that does not overly burden the right may very well withstand strict scrutiny.

CAL.BAR
02-02-2010, 2:05 PM
Window_seat - please shout this from the top of the nearest yardarm. INCORPORATION ONLY ONLY APPLIES FED LAW TO THE STATES. If there is no federal law against banning hi-caps, AW's or other stuff (which KA does). Then we have NO grounds to attack it. So remember if you are thinking of using the "incorporation" argument as applied to guns (or anything else) please go find the Federal law which prevents it and then show us that first.

wildhawker
02-02-2010, 2:16 PM
Djandj, you're grossly mistaken and should consider doing some serious homework yourself.

dantodd
02-02-2010, 2:19 PM
Window_seat - please shout this from the top of the nearest yardarm. INCORPORATION ONLY ONLY APPLIES FED LAW TO THE STATES.

Just so you know. This is an incorrect understanding of incorporation. I urge you to read the Circuit opinion in Nordyke it is an excellent primer on incorporation.

Incorporation of the second amendment extends federal proscriptions to lesser governments. This is very different than "applies federal law to the states." In essence it means "if the Feds CAN'T do X neither can the States, counties, municipalities etc.

sfwdiy
02-02-2010, 2:56 PM
Yet, another picking of the brains on incorporation. Of course, if it's a dupe, please point me to the right thread, otherwise after a search, I found no such question, unless it's buried in large threads.

Assuming we are successful after McDonald & Nordyke, what are the chances / priorities that we attack the registration aspect of HG, OLL, etc. purchases? Do we go after the registration requirements, and make a case against it? Is it possible to remove that registration from the DOJ database? Just trying to pick brains.

Erik.

I'm not sure about what will happen in CA with regard to handgun registration but OLLs aren't registered. An OLL is just another long gun and is DROS'ed as such. Once you pick it up after the waiting period, it's pretty much in the wind.

--B

CAL.BAR
02-02-2010, 3:03 PM
Just so you know. This is an incorrect understanding of incorporation. I urge you to read the Circuit opinion in Nordyke it is an excellent primer on incorporation.

Incorporation of the second amendment extends federal proscriptions to lesser governments. This is very different than "applies federal law to the states." In essence it means "if the Feds CAN'T do X neither can the States, counties, municipalities etc.

Dantodd - my paraphrasing of the incorporation doctrine is not incorrect. Yes, if the feds can't do it neither can the states - same analysis applies.

To use your "paraphrase - "if the Feds CAN'T do X neither can the States, counties, municipalities etc" Great - but there is NOTHING which prohibits the Feds from regulating AW's, MG's, Hi Cap mags or anything else you might name. Only from the outright ban of pistols (according to the brand new Heller case) That's it.

Find me the Federal Law that says the Feds or the states can't enact "reasonable" regulation on firearms and accessories. Heck, the Feds were some of the earliest gun banners (remember the 1934 NFA) A virtual ban on FA's among a great many others.

Again, incorporation only applies Federal Law (i.e. Federal Constitution and bill of rights etc.) to the States. And there is NOTHING in any of those FEDERAL laws which prevent the limiting of hi-cap mags, AW's or SBR's etc.

wildhawker
02-02-2010, 3:30 PM
<sigh>

dantodd
02-02-2010, 4:02 PM
Find me the Federal Law that says the Feds or the states can't enact "reasonable" regulation on firearms and accessories. Heck, the Feds were some of the earliest gun banners (remember the 1934 NFA) A virtual ban on FA's among a great many others.

Find me something in Federal law that says the feds can't ban all handguns.

wildhawker
02-02-2010, 4:10 PM
You're summarily incorrect.

Incorporation binds the laws of States and their political subdivisions to the same standards of scrutiny, as determined through SCOTUS or CA precedent, as would be Federal law.

I urge you to research how incorporation has affected state and local laws regarding other fundamental rights, such as that of freedom of speech.

Some laws may be permissible under intermediate or strict scrutiny (as Heller clearly states); however, rational basis is out.

Dantodd - my paraphrasing of the incorporation doctrine is not incorrect. Yes, if the feds can't do it neither can the states - same analysis applies.

To use your "paraphrase - "if the Feds CAN'T do X neither can the States, counties, municipalities etc" Great - but there is NOTHING which prohibits the Feds from regulating AW's, MG's, Hi Cap mags or anything else you might name. Only from the outright ban of pistols (according to the brand new Heller case) That's it.

Find me the Federal Law that says the Feds or the states can't enact "reasonable" regulation on firearms and accessories. Heck, the Feds were some of the earliest gun banners (remember the 1934 NFA) A virtual ban on FA's among a great many others.

Again, incorporation only applies Federal Law (i.e. Federal Constitution and bill of rights etc.) to the States. And there is NOTHING in any of those FEDERAL laws which prevent the limiting of hi-cap mags, AW's or SBR's etc.

Cokebottle
02-02-2010, 4:51 PM
Find me something in Federal law that says the feds can't ban all handguns.
Heller? ;)

tyrist
02-02-2010, 5:43 PM
Unless registration is used to deny access I don't think there is anyway your going to get rid of it. Once full incorporation happens I fully expect registration will be where the anti gun groups put most of their efforts.

Window_Seat
02-02-2010, 5:47 PM
Suppose that the court(s) determine that "reasonable restrictions" can apply to the states, could we argue that HGR is not reasonable because of the past problems it has caused (like post Katrina confiscation), and the potential for abuse to what is considered to be constitutional?

Erik.

bulgron
02-02-2010, 6:09 PM
Suppose that the court(s) determine that "reasonable restrictions" can apply to the states, could we argue that HGR is not reasonable because of the past problems it has caused (like post Katrina confiscation), and the potential for abuse to what is considered to be constitutional?

Erik.

If strict scrutiny is applied, then any government attempting registration has to prove that registration solves a critical problem that can be solved no other way. (Or so I believe -- me being a layman and all.)

So what critical problem is solved by registration? By that, I mean, how often is gun registration actually used for anything useful?

Betcha there's an interesting study for some criminologist in there somewhere.

yellowfin
02-02-2010, 6:55 PM
Suppose that the court(s) determine that "reasonable restrictions" can apply to the states, could we argue that HGR is not reasonable because of the past problems it has caused (like post Katrina confiscation), and the potential for abuse to what is considered to be constitutional?

Erik.To get restrictions barred because of potential for abuse, we would need the Carolene decision overturned. That one has been stretched and abused as bad or worse than the Commerce Clause.

The big target post incorporation to the effect of getting rid of registration and licensing for ownership is the Sullivan Law. Hey Gene, can we get an artillery strike sent over here, please?

dantodd
02-02-2010, 9:15 PM
Heller? ;)

That is case law and not statute, I suppose I should have been more clear.

wildhawker
02-02-2010, 9:47 PM
That is case law and not statute, I suppose I should have been more clear.

Actually, that was pretty clearly implied in the context of the discussion, but I can see how it could have been overlooked.

wash
02-02-2010, 9:55 PM
One interesting thing is the penalty enhancement for ccw of an unregistered handgun.

I think there is a law like that.

Any way, registration isn't required for handguns so in a post incorporation world, we might be able to challenge the penalty enhancement.

dantodd
02-02-2010, 9:59 PM
One interesting thing is the penalty enhancement for ccw of an unregistered handgun.

I think there is a law like that.

Any way, registration isn't required for handguns so in a post incorporation world, we might be able to challenge the penalty enhancement.

It all depends on whether the courts decide that registration is an undue burden. Many of "The right people" seem to think it is not.

If it is not an undue burden then the state can require it for certain circumstances which would make a sentence enhancement not unreasonable.