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tiki
03-26-2010, 1:40 PM
http://www.scotusblog.com/2010/03/new-d-c-gun-laws-upheld/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+scotusblog%2FpFXs+%28SCOTUSbl og%29


A federal judge in Washington, applying the Supreme Court’s 2008 decision creating a constitutional right to have a gun, ruled on Friday that three new gun control restrictions in the Nation’s capital city survive a Second Amendment challenge. In the ruling by U.S. District Judge Ricardo M. Urbina, the District of Columbia government’s laws requiring that guns be registered and banning assault weapons and large-capacity bullet-feeding devices are valid. The case is Heller, et al., v. District of Columbia (District Court docket 08-1289); the opinion can be found here (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv1289-32). (The lead individual in the case, government security guard Dick Anthony Heller, is the same District resident who won the Supreme Court case with the same title in 2008.)
Such gun control laws, the judge ruled, are to be subjected to constitutional analysis using an “intermediate” level of review — that is, a challenged law will be upheld if it is “substantially related to an important governmental interest.” Courts around the country have differed on what level of review should apply to gun regulation, and that issue thus is a likely one for future Supreme Court analysis. The Justices did not lay down a standard in 2008, other than to say it would take more than simple “reasonable” justification to satisfy the Second Amendment.

The Supreme Court two years ago struck down a District government ban on handguns and a separate requirement that guns in the home be kept locked or disassembled. In doing so, the Court for the first time read the Second Amendment as protecting an individual’s personal right to have a gun for private use, at least for immediate self-defense in the home. The Court indicated at the time, however, that some forms of gun regulation — not spelled out in full — might still be valid under that Amendment. The District government followed up the ruling with City Council adoption of new restrictions that officials thought the Heller decision would allow. On Friday, Judge Urbina agreed.
In deciding how to weigh challenges in the new District laws, the judge noted that the Supreme Court had not placed gun rights in the category that gets the greatest constitutional protection — that is, rights that are deemed to be “fundamental.” The judge remarked: “If the Supreme Court had wanted to declare the Second Amendment a fundamental right, it would have done so explicitly.” Moreover, he added, declaring gun rights to be fundamental could not be squared with the Supreme Court’s remarks that some forms of regulation would remain valid.
Following are the three District laws, described in summary, and Judge Urbina’s rulings on them:
First, gun registration.
The new District law requires that all guns be registered. The person seeking to do so must submit fingerprints and two photographs, show knowledge of local gun laws, have visual capacity sufficient to get a vehicle driver’s license, prove completion of a gun-use or safety course, show how the gun will be used and where it will be kept, and notify District police if the gun is stolen, transferred, sold, lost of destroyed. For pistols, each weapon must be submitted for a ballistic ID test, for which a fee is attached, and no more than one pistol a month may be registered. Registration lasts for three years, but can be renewed.
The judge said that these regulations do implicate the Second Amendment right to defend one’s self in the home, but that they are justified as ways for local officials to monitor gun use, track guns used in crimes, and allow prosecution for failing to register. Those goals of public safety, the opinion said, will be served by the registration obligations. “Public safety is a quintessential matter of public regulation,” Urbina wrote.
Second, assault weapon ban.
The new law provides a list of what it considers to be assault weapons, including pistols, rifles and shotguns, or guns that have military-style features such as use of a magazine that can be detached.
The judge concluded that these weapons are not in common use, are not possessed by law-abiding citizens as a general rule, and are dangerous. Thus, the judge ruled, they are outside the Second Amendment’s protection. Thus, Urbina said, there was no need to weigh their constitutionality. If intermediate scrutiny were applied, however, the judge said the ban would satisfy that standard because the ban is keyed to public safety.
Third, large capacity magazines ban.
The new law flatly bans a magazine, belt, drum, feed strip, or similar device that can accept more than 10 bullets.
Just as with the assault weapon ban, Judge Urbina ruled that these restrictions are outside the scope of the Second Amendment but, in any event, would satisfy intermediate scrutiny for public safety reasons
Judge Urbina went on to reject one added challenge to the new local laws: a claim that, because the restrictions go further than those that have been upheld elsewhere, they go beyond the powers of the District’s local government.
Technically, the judge decided the challenge by ruling on competing motions for a ruling without a full trial — that is, summary judgment — because the facts were not in dispute. Joining Dick Anthony Heller in the challenge were three other District residents, Absalom Jordan, William Carter and Mark Snyder.
The challengers have the option of appealing the ruling to the D.C. Circuit Court and eventually to the Supreme Court. One or both of those maneuvers seems likely, given the breadth of the new restrictions and the fervor of the challengers.

POLICESTATE
03-26-2010, 1:46 PM
"The new law provides a list of what it considers to be assault weapons, including pistols, rifles and shotguns, or guns that have military-style features such as use of a magazine that can be detached.
The judge concluded that these weapons are not in common use, are not possessed by law-abiding citizens as a general rule, and are dangerous. Thus, the judge ruled, they are outside the Second Amendment’s protection. Thus, Urbina said, there was no need to weigh their constitutionality. If intermediate scrutiny were applied, however, the judge said the ban would satisfy that standard because the ban is keyed to public safety."

Everything about this statement is complete and utter CRAP. One could articulate that anything is keyed to public safety. Is this judge from California or something?

Untamed1972
03-26-2010, 1:56 PM
"The judge concluded that these weapons are not in common use, are not possessed by law-abiding citizens as a general rule,"


Just cuz she says it.....doesn't make it so.

Sounds like some standard needs to be reached on what constitutes "in common use".

An AR is prolly the MOST commonly owned semi-auto rifle there is in the US. It is "America's Rifle" after all.

ZombieTactics
03-26-2010, 1:58 PM
... and the battle rages on. This is what you can expect. We'll have to take ground bit by bit, and they'll pull whatever crap they can along the way.

Bug Splat
03-26-2010, 2:04 PM
Yeah, I don't sense an agenda there :rolleyes:

Law is law. Judge, your logic means nothing. Stop back seat driving.

AEC1
03-26-2010, 2:04 PM
This is good, we take it to the SCOTUS and when it is overturned, and we have incorperation, then it will help us out a bit...

SanPedroShooter
03-26-2010, 2:08 PM
Isnt this the exact type of ruling that we will see here in California even when Mcdonald is decided? Isnt it going to be up to a judge to define resonable restrictions?

not-fishing
03-26-2010, 2:10 PM
NRA will have to pull the anti-gun laws out of DC's cold dead hands.

Liberty1
03-26-2010, 2:11 PM
She is on our side. She is helping us climb the ladder. ;)

gregorylucas
03-26-2010, 2:23 PM
What this the outcome we were expecting at this level? Maybe of the the folks in the know can weigh in on this please?

-Greg

POLICESTATE
03-26-2010, 2:25 PM
She is on our side. She is helping us climb the ladder. ;)

Could explain why she wrote such ridiculous opinions, making it easy for our side

Grakken
03-26-2010, 2:26 PM
if and when this is struck down, they'll just add another roadblock, say the color of the rifle, and after that, they'll find something else...

Maestro Pistolero
03-26-2010, 2:27 PM
If overturned, AW laws across the land fall like dominoes. If upheld . . .:eek:

BigDogatPlay
03-26-2010, 2:27 PM
She is on our side. She is helping us climb the ladder. ;)

^^^ This ^^^ ... whether she knows it or not.

And the "in common use" argument in that decision as relates to 95% of the country is indeed crap. They were already illegal in DC so hence would not be in common use... there.

Geez I love it when learned judges step on their own genitalia in pursuit of a social or political agenda.

FABIO GETS GOOSED!!!
03-26-2010, 2:33 PM
DC shouldn't have given up so easily on the roster, lol.

bwiese
03-26-2010, 2:37 PM
F'n Holbrook screwed the pooch.

This still has to climb the ladder.

tiki
03-26-2010, 2:48 PM
F'n Holbrook screwed the pooch.


Help me out on this one Bill. Holbrook? Sounds familiar, just can't place it.

gregorylucas
03-26-2010, 2:50 PM
F'n Holbrook screwed the pooch.

This still has to climb the ladder.

Care to elaborate? Did he do something really off or is this judge ideologically hostile to us?

-Greg

CalNRA
03-26-2010, 2:57 PM
:popcorn:

kf6tac
03-26-2010, 3:02 PM
In deciding how to weigh challenges in the new District laws, the judge noted that the Supreme Court had not placed gun rights in the category that gets the greatest constitutional protection — that is, rights that are deemed to be “fundamental.” The judge remarked: “If the Supreme Court had wanted to declare the Second Amendment a fundamental right, it would have done so explicitly.”

Ummmm, yeah, isn't that what McDonald is all about? Geez, Your Honor, if you're going to base your ruling on an issue that is currently pending adjudication by the U.S. Supreme Court, maybe you should, y'know, wait for their decision first.

bwiese
03-26-2010, 3:04 PM
Ummmm, yeah, isn't that what McDonald is all about? Geez, Your Honor, if you're going to base your ruling on an issue that is currently pending adjudication by the U.S. Supreme Court, maybe you should, y'know, wait for their decision first.

That, and the fact this is a lower court, is our saving grace.

IGOTDIRT4U
03-26-2010, 3:09 PM
Second, assault weapon ban.
The new law provides a list of what it considers to be assault weapons, including pistols, rifles and shotguns, or guns that have military-style features such as use of a magazine that can be detached.
The judge concluded that these weapons are not in common use, are not possessed by law-abiding citizens as a general rule, and are dangerous. Thus, the judge ruled, they are outside the Second Amendment’s protection. Thus, Urbina said, there was no need to weigh their constitutionality. If intermediate scrutiny were applied, however, the judge said the ban would satisfy that standard because the ban is keyed to public safety.


:rofl2:

socalblue
03-26-2010, 3:11 PM
It's exactly what would be expected at this point & frankly welcomed. This now provided a direct path to an overturn on these points (Other than registration. That has been upheld too many times though the methods are certainly in question).

CAL.BAR
03-26-2010, 3:22 PM
Everything about this statement is complete and utter CRAP. One could articulate that anything is keyed to public safety. Is this judge from California or something?

Exactly - Remember that the original limitation on free speech (the old fire in a theater case) puts "public safety" above any level of scrutiny. Everyone who thinks that Heller will be used to overturn any CA gun laws is not familiar with legal reasoning.

Sorry but it's true.

Uriah02
03-26-2010, 3:26 PM
looks like the judge gave as little as possible. I want to see what stats were applied to show that the majority of "military style" weapons are not in common use or possessed by law abiding citizens.

jdberger
03-26-2010, 3:34 PM
Help me out on this one Bill. Holbrook? Sounds familiar, just can't place it.

I think Bill means Stephen Halbrook (http://www.constitution.org/2ll/schol/jfp5ch01.htm).

stag1500
03-26-2010, 3:34 PM
Exactly - Remember that the original limitation on free speech (the old fire in a theater case) puts "public safety" above any level of scrutiny. Everyone who thinks that Heller will be used to overturn any CA gun laws is not familiar with legal reasoning.

Sorry but it's true.

And yet during the McDonald v Chicago oral arguments, Justice Scalia said, "We don't resolve questions like that on the basis of statistics." If "public safety" were the standard, the D.C. gun ban would still be in place.

Aleksandr Mravinsky
03-26-2010, 3:35 PM
I was worried for a second, since the link was to the SCOTUS blog. Glad that this is a lower court decision that is full of BS. It will help our case in the end.

pdq_wizzard
03-26-2010, 3:45 PM
The only good thing about this is the Judge is .... um ....

nevermind my Mom said don't say bad things about people :)

There are so many holes in what is writen here.

radioburning
03-26-2010, 3:51 PM
Anybody got a link to the specific weapons they're listing as "assault weapons"?

POLICESTATE
03-26-2010, 3:58 PM
Anybody got a link to the specific weapons they're listing as "assault weapons"?

They have a specific list apparently and then they also have this: "or guns that have military-style features such as use of a magazine that can be detached."

According to the article at any rate.

I think it's fairly safe to say that break-open, muzzle loaders, single-shooters should be okay. Very loose language on that sentence, technically any magazine can be detached with the use of tools.

Liberty1
03-26-2010, 4:12 PM
Anybody got a link to the specific weapons they're listing as "assault weapons"?

Any semi-auto in DC I believe. Also a colt 1911 handgun is a DC 'machine gun' as it can accept a mag holding over 10 rounds.

radioburning
03-26-2010, 4:16 PM
they also have this: "or guns that have military-style features such as use of a magazine that can be detached."


That's why I want to see their list. "Use of a magazine the can be detached" is a lot of guns. I'm wondering if Mini-14's, 10/22's, GSG-5's, Garand's, etc. etc. are on their list.

BigDogatPlay
03-26-2010, 4:22 PM
That's why I want to see their list. "Use of a magazine the can be detached" is a lot of guns. I'm wondering if Mini-14's, 10/22's, GSG-5's, Garand's, etc. etc. are on their list.

Everything is linked through this page. (http://mpdc.dc.gov/mpdc/cwp/view,a,1237,q,547431,mpdcNav_GID,1523,mpdcNav,|.as p)

yellowfin
03-26-2010, 4:24 PM
F'n Holbrook screwed the pooch.

This still has to climb the ladder.I'm curious. What do you think Halbrook did wrong that prompted this decision? Was it not the judge just simply sticking to what they wanted to rule and not caring what our side said?

BobB35
03-26-2010, 4:38 PM
why is anyone surprised? This just moves up to the next level and in the end the attorney for Mr. Heller collect 1+ million dollars the from taxpayers of the nation (DC is supported by the entire country) because you have stupid people appointed to the bench, mostly by dems, who believe in a "living Constitution" which is really no constitution at all....simple, but it takes time to overturn all of these bad decisions...just wish there was a rule that said if the Supreme court overrules you 3 times you no longer get to be a judge...oh wait no you just get to be a Supreme court justice (Sotomayor anyone) does anyone really hold out hope for the future of this country as long as the same politicians stay in office and we keep electing unqualified people.......

woodsman
03-26-2010, 4:46 PM
Reasonable restriction translation - " We are going to make it as inconvenient and hard as possible for anyone to own a gun in D.C., while making as much money as we can should they pursue getting one."

Complete BS.

wash
03-26-2010, 5:04 PM
This should get smacked down pretty quick (for a lawsuit) and incorporation will make that apply nation wide.

It sucks that we are in the situation where our lower courts would rule like this but this is a big step toward fixing that.

kf6tac
03-26-2010, 5:26 PM
Anybody got a link to the specific weapons they're listing as "assault weapons"?

Looks like they basically parroted our lovely AW ban.

(3A)(A) "Assault weapon" means:
(i) The following semiautomatic firearms:
(I) All of the following specified rifles:
(aa) All AK series including, but not limited to, the models identified as follows:
(1) Made in China AK, AKM, AKS, AK47, AK47S, 56, 56S, 84S, and 86S;
(2) Norinco (all models);
(3) Poly Technologies (all models);
(4) MAADI AK47 and ARM; and
(5) Mitchell (all models).
(bb) UZI and Galil;
(cc) Beretta AR-70;
(dd) CETME Sporter;
(ee) Colt AR-15 series;
(ff) Daewoo K-1, K-2, Max 1, Max 2, AR 100, and AR110 C;
(gg) Fabrique Nationale FAL, LAR, FNC, 308 Match, and Sporter;
(hh) MAS 223.
(ii) HK-91, HK-93, HK-94, and HK-PSG-1;
(jj) The following MAC types:
(1) RPB Industries Inc. sM10 and sM11; and
(2) SWD Incorporated M11;
(kk) SKS with detachable magazine;
(ll) SIG AMT, PE-57, SG 550, and SG 551;
(mm) Springfield Armory BM59 and SAR-48;
(nn) Sterling MK-6;
(oo) Steyer AUG, Steyr AUG;
(pp) Valmet M62S, M71S, and M78S;
(qq) Armalite AR-180;
(rr) Bushmaster Assault Rifle;
(ss) Calico --900;
(tt) J&R ENG --68; and
(uu) Weaver Arms Nighthawk.
(II) All of the following specified pistols:
(aa) UZI;
(bb) Encom MP-9 and MP-45;
(cc) The following MAC types:
(1) RPB Industries Inc. sM10 and sM11;
(2) SWD Incorporated -11;
(3) Advance Armament Inc. --11; and
(4) Military Armament Corp. Ingram M-11;
(dd) Intratec TEC-9 and TEC-DC9;
(ee) Sites Spectre;
(ff) Sterling MK-7;
(gg) Calico M-950; and
(hh) Bushmaster Pistol.
(III) All of the following specified shotguns:
(aa) Franchi SPAS 12 and LAW 12; and
(bb) Striker 12. The Streetsweeper type S/S Inc. SS/12;
(IV) A semiautomatic, rifle that has the capacity to accept a detachable magazine and any one of the following:
(aa) A pistol grip that protrudes conspicuously beneath the action of the weapon;
(bb) A thumbhole stock;
(cc) A folding or telescoping stock;
(dd) A grenade launcher or flare launcher;
(ee) A flash suppressor; or
(ff) A forward pistol grip;
(V) A semiautomatic pistol that has the capacity to accept a detachable magazine and any one of the following:
(aa) A threaded barrel, capable of accepting a flash suppressor, forward handgrip, or silencer;
(bb) A second handgrip;
(cc) A shroud that is attached to, or partially or completely encircles, the barrel that allows the bearer to fire the weapon without burning his or her hand, except a slide that encloses the barrel; or
(dd) The capacity to accept a detachable magazine at some location outside of the pistol grip;
(VI) A semiautomatic shotgun that has one or more of the following:
(aa) A folding or telescoping stock;
(bb) A pistol grip that protrudes conspicuously beneath the action of the weapon;
(cc) A thumbhole stock; or
(dd) A vertical handgrip; and
(VII) A semiautomatic shotgun that has the ability to accept a detachable magazine; and
(VIII) All other models within a series that are variations, with minor differences, of those models listed in subparagraph (A) of this paragraph, regardless of the manufacturer;
(ii) Any shotgun with a revolving cylinder; provided, that this sub-subparagraph shall not apply to a weapon with an attached tubular device designed to accept, and capable of operating only with, .22 caliber rimfire ammunition; and
(iii) Any firearm that the Chief may designate as an assault weapon by rule, based on a determination that the firearm would reasonably pose the same or similar danger to the health, safety, and security of the residents of the District as those weapons enumerated in this paragraph.
(B) The term "assault weapon" shall not include:
(i) Any antique firearm; or
(ii) Any of the following pistols, which are designed expressly for use in Olympic target shooting events, sanctioned by the International Olympic Committee and by USA Shooting, the national governing body for international shooting competition in the United States, and used for Olympic target shooting purposes:

MANUFACTURER MODEL CALIBER
BENELLI MP90 .22LR
BENELLI MP90 .32 S&W LONG
BENELLI MP95 .22LR
BENELLI MP95 .32 S&W LONG
HAMMERLI 280 .22LR
HAMMERLI 280 .32 S&W LONG
HAMMERLI SP20 .22LR
HAMMERLI SP20 .32 S&W LONG
PARDINI GPO .22 SHORT
PARDINI GP-SCHUMANN .22 SHORT
PARDINI HP .32 S&W LONG
PARDINI MP .32 S&W LONG
PARDINI SP .22LR
PARDINI SPE .22LR
WALTHER GSP .22LR
WALTHER GSP .32 S&W LONG
WALTHER OSP .22 SHORT
WALTHER OSP-2000 .22 SHORT

elenius
03-26-2010, 5:36 PM
Good, one step closer to the Supreme Court, although I doubt most of these restrictions make it past the DC District Court.

ETA: Bill, I'm also curious what you think Halbrook did wrong. Too early for an AW/hicap challenge?

This decision is also discussed at the Volokh Conspiracy:
http://volokh.com/2010/03/26/district-court-upholds-d-c-registration-requirement-assault-weapon-ban-ban-on-large-capacity-magazines/

HondaMasterTech
03-26-2010, 6:50 PM
I do not like the term, "in common use". If an arm is banned, unrightfully of course, how can it EVER be considered "in common use"? This term should be banned.

kf6tac
03-26-2010, 7:00 PM
I do not like the term, "in common use". If an arm is banned, unrightfully of course, how can it EVER be considered "in common use"? This term should be banned.

The "in common use" criterion is really kind of bizarre, especially coming from Scalia. It implies that we should look to contemporary norms to define an enumerated constitutional right (which cuts against his own originalism) and that a firearm in common use today, and therefore within the scope of the Second Amendment, might fall out of common use 50 years from now and then... what? No longer be protected? If everyone stopped using projectile weapons for home defense because they could use a phased plasma rifle in the 40 watt range instead, would that render all of today's firearms no longer within the scope of the Second Amendment?

GM4spd
03-26-2010, 7:19 PM
Did you really expect any other result? Pete

Shotgun Man
03-26-2010, 7:31 PM
The "in common use" criterion is really kind of bizarre, especially coming from Scalia. It implies that we should look to contemporary norms to define an enumerated constitutional right (which cuts against his own originalism) and that a firearm in common use today, and therefore within the scope of the Second Amendment, might fall out of common use 50 years from now and then... what? No longer be protected? If everyone stopped using projectile weapons for home defense because they could use a phased plasma rifle in the 40 watt range instead, would that render all of today's firearms no longer within the scope of the Second Amendment?

I think it is okay for Scalia to talk common use.

Using a first amendment analog, the leaflets, pamphlets, etc., of yesteryear are no different than the internet, twitters, etc., of today.

Scalia stands by the internet as being protected speech. Similarly, in the 2A context, the AR15 is protected, as is the internet, because it is merely an evolution of the means by which the right is expressed-- common use.

Were not talking new rights being dreamt up of thin air, such as arguably the right to the abortion, but enumerated rights stated in the Bill of Rights.

Originalism does not mean that we are restricted by antiquated means to express our rights. If that was the case, there would be no internet 1A protections.

kf6tac
03-26-2010, 8:45 PM
I think it is okay for Scalia to talk common use.

Using a first amendment analog, the leaflets, pamphlets, etc., of yesteryear are no different than the internet, twitters, etc., of today.

Scalia stands by the internet as being protected speech. Similarly, in the 2A context, the AR15 is protected, as is the internet, because it is merely an evolution of the means by which the right is expressed-- common use.

Were not talking new rights being dreamt up of thin air, such as arguably the right to the abortion, but enumerated rights stated in the Bill of Rights.

Originalism does not mean that we are restricted by antiquated means to express our rights. If that was the case, there would be no internet 1A protections.

I agree with everything you said, but it seems like you're conflating the antiquity concern with the "common use" concern, when really they're two different things. What I think you're saying (and what I think the 1st Amendment cases you refer to are saying) is that the internet is just a more technologically advanced version of accepted methods of speech - it's a high-tech leaflet/pamphlet/billboard. That has nothing to do with whether or not the internet is a commonly used method of speech. Even if only a tiny percentage of the population used the internet to express ideas, to the extent that it couldn't be considered "in common use," I think Scalia would still stand by it as protected speech because it is a modern analogue of Founding-era expression. If we were to analogize the First Amendment cases to the Second Amendment setting, Scalia would say that even if only a tiny handful of people chose the <insert modern firearm of your choice here> for home defense, it would be protected because it is simply a modern analogue of firearms used in 1789.

By contrast, the "in common use" standard as it is phrased in Heller implies that there needs to be some sort of general acceptance and adoption of a firearm (or, to continue the First Amendment analogy, a method of expression) before it will be protected.

Maestro Pistolero
03-26-2010, 10:02 PM
I do not like the term, "in common use".Me, either. Happily, it would seem to protect ARs, and semi auto pistols with full cap magazines.

But if it is the only standard, then no new weapons technology would be protected, until it, too, was in common use. There would be a large window of time in which any new weapon could be banned using the common use standard. It needs a caveat, or an additional basis that allows for new technology.

kf6tac
03-26-2010, 10:28 PM
Me, either. Happily, it would seem to protect ARs, and semi auto pistols with full cap magazines.

But if it is the only standard, then no new weapons technology would be protected, until it, too, was in common use. There would be a large window of time in which any new weapon could be banned using the common use standard. It needs a caveat, or an additional basis that allows for new technology.

It also raises the odd question of whether late 1700s muzzle loaders are still protected today in 2010.

hoffmang
03-26-2010, 11:20 PM
It is not very surprising that this Judge ruled this way. That's part of what Bill is complaining about. A challenge this broad ranging should have had more background work done on each of the issues.

That said, the court here makes a bunch of mistakes that are quite likely to get it overturned in the DC District Court of Appeals.

-Gene

nicki
03-26-2010, 11:57 PM
The lower court is playing games. Hopefully the SCOTUS is seeing this case and will make a more clear cut ruling that clarifies level of scrutiny. It is apparent that the SCOTUS intended to preserve common sense gun regulations such as restricting access of guns to violent felons.

It is obvious from this ruling that more clear directions on level of scrutiny needs to be given to the lower courts.

Perhaps this is exactly what Scalia planned and he deliberately set traps in the Heller case so that further cases would make their way through the courts.


Nicki

Mulay El Raisuli
03-27-2010, 9:57 AM
It also raises the odd question of whether late 1700s muzzle loaders are still protected today in 2010.


I don't see why they wouldn't be. After all, many people still use them.


The "in common use" criterion is really kind of bizarre, especially coming from Scalia. It implies that we should look to contemporary norms to define an enumerated constitutional right (which cuts against his own originalism) and that a firearm in common use today, and therefore within the scope of the Second Amendment, might fall out of common use 50 years from now and then... what? No longer be protected? If everyone stopped using projectile weapons for home defense because they could use a phased plasma rifle in the 40 watt range instead, would that render all of today's firearms no longer within the scope of the Second Amendment?


Just like many people still use muskets, people will still use projectile weapons.

I am looking forward to phased plasma rifles being covered by the 2A though. :)


The lower court is playing games. Hopefully the SCOTUS is seeing this case and will make a more clear cut ruling that clarifies level of scrutiny. It is apparent that the SCOTUS intended to preserve common sense gun regulations such as restricting access of guns to violent felons.

It is obvious from this ruling that more clear directions on level of scrutiny needs to be given to the lower courts.

Perhaps this is exactly what Scalia planned and he deliberately set traps in the Heller case so that further cases would make their way through the courts.


Nicki


He is a very smart & tricky individual. It wouldn't surprise me a bit to learn that this is exactly what he's doing.


The Raisuli

Aleksandr Mravinsky
03-27-2010, 10:27 AM
The 10 round magazine capacity law, even if it wasn't protected under the second amendment, we'd still be able to go after it under the commerce clause, right?

hoffmang
03-27-2010, 12:39 PM
The 10 round magazine capacity law, even if it wasn't protected under the second amendment, we'd still be able to go after it under the commerce clause, right?

Not the interstate commerce clause, no...

-Gene

Shotgun Man
03-27-2010, 1:19 PM
The 10 round magazine capacity law, even if it wasn't protected under the second amendment, we'd still be able to go after it under the commerce clause, right?

The leaders here on Calguns have stated in the past that 10-round limit is likely to survive judicial scrutiny.

Cops have large-capacity magazines for the simple reason that they increase one's survival chances against a bad guy.

Non-elites-- not so lucky.

SickofSoCal
03-27-2010, 1:29 PM
One ten mile square I never wish to inhabit.

Shotgun Man
03-27-2010, 1:34 PM
One ten mile square I never wish to inhabit.

Oh, but their roster is more expansive than ours.

anthonyca
03-27-2010, 3:28 PM
It is not very surprising that this Judge ruled this way. That's part of what Bill is complaining about. A challenge this broad ranging should have had more background work done on each of the issues.

That said, the court here makes a bunch of mistakes that are quite likely to get it overturned in the DC District Court of Appeals.

-Gene

I would hope that the right people on a national level would get involved if this moves forward. Hopefully Heller and Holbrook will let them in.

stag1500
03-27-2010, 9:14 PM
The leaders here on Calguns have stated in the past that 10-round limit is likely to survive judicial scrutiny.

How can it if we get National CCW reciprocity? A Nevada resident carrying a H&K VP70 (which has no 10rd magazines available for it) comes to visit California and gets busted for importing high-cap magazines? That's not going to fly.

HondaMasterTech
03-27-2010, 9:40 PM
Lawmakers believe VERY strongly that you should have to reload after killing 10 people.

BluNorthern
03-27-2010, 9:41 PM
"a challenged law will be upheld if it is “substantially related to an important governmental interest.”"+"are not possessed by law-abiding citizens as a general rule, and are dangerous."+If intermediate scrutiny were applied, however, the judge said the ban would satisfy that standard because the ban is keyed to public safety.= A stacked deck against us. 'Bout covers everything and anything that they could wish to ban or regulate depending on what standard they decide to apply.

Maestro Pistolero
03-27-2010, 10:52 PM
How can it if we get National CCW reciprocity? A Nevada resident carrying a H&K VP70 (which has no 10rd magazines available for it) comes to visit California and gets busted for importing high-cap magazines? That's not going to fly.

THIS. Under that theory, you might have to buy a different gun for every state you ever visit. There has to be a standard.

BTW, I see a difference between a national permit, and constitutionally enforced reciprocity under the 14th. One could be taken away by the federal government, and the other could only be protected by it.

nobody_special
03-27-2010, 11:40 PM
"a challenged law will be upheld if it is “substantially related to an important governmental interest.”"+"are not possessed by law-abiding citizens as a general rule, and are dangerous."+If intermediate scrutiny were applied, however, the judge said the ban would satisfy that standard because the ban is keyed to public safety.= A stacked deck against us. 'Bout covers everything and anything that they could wish to ban or regulate depending on what standard they decide to apply.

By those standards, any regulation would survive... including those struck down in the original Heller case.:wacko:

Mulay El Raisuli
03-28-2010, 5:29 AM
The 10 round magazine capacity law, even if it wasn't protected under the second amendment, we'd still be able to go after it under the commerce clause, right?


I'm going to disagree with Gene & state that I see no reason that we couldn't do so. After all, the Commerce Clause IS the Magical Wish Granting Genie. Its used to force Federal standards on states for everything else. Why not this Federal standard? If not, there's other, non-gun, precedents concerning "equal protection" that will be in our quiver come June.


The Raisuli

press1280
03-28-2010, 6:00 AM
By those standards, any regulation would survive... including those struck down in the original Heller case.:wacko:

Kind along the same lines as McDonald:

JUSTICE ALITO: And your position is that a -- a State or local government could completely ban all firearms?
MR. FELDMAN: If the State and local government did that, I think would it raise two questions. One question would be, there is always review under the Due Process Clause and under the Equal Protection Clause for provisions that are arbitrary. And I’d want to know why a State had done that. It’s certainly relevant that in the last 220 years, no
State has done that or even come close, and, in fact, as the briefs on the other side of the case from some of the States show, they are quite the opposite direction.
But the second point would be --JUSTICE SCALIA: I -- I don't understand. JUSTICE KENNEDY: What is the due process
liberty --JUSTICE SCALIA: What basis would there be
to -- to deny that? MR. FELDMAN: Well, there's always --JUSTICE SCALIA: Firearms kill people is
what the States say, and -- and we ban it. MR. FELDMAN: Right, and that has --JUSTICE SCALIA: Other countries have done
that. MR. FELDMAN: It has not led to States doing it in -- in this country. The second question --JUSTICE SCALIA: But if they did do it, I think you’d have to say it's perfectly okay.
MR. FELDMAN: No, the second -- there would be two questions actually. One would be was arbitrary, or is that actually based on a reason that’s --a sound reason?
JUSTICE SCALIA: Yes. The reason is guns are dangerous.

It's always the same "guns are dangerous" argument. They can get away with that crap with an anti gun state or local court, but in SCOTUS they'll need to show that the regulation allows for lawful use without being overly burdensome, while weeding out felons and others falling outside the right(like the background checks).

hoffmang
03-28-2010, 9:27 AM
I'm going to disagree with Gene & state that I see no reason that we couldn't do so. After all, the Commerce Clause IS the Magical Wish Granting Genie. Its used to force Federal standards on states for everything else. Why not this Federal standard? If not, there's other, non-gun, precedents concerning "equal protection" that will be in our quiver come June.


The commerce clause doesn't work that way. It empowers congress (wrongly) to do anything they want. What was being discussed above is really the Dormant Commerce Clause as the rule is a state law and the argument would be that it is impliedly preempted. Congress could pass a law that says "no state or local government may regulate ammunition feeding devices" and then CA's law would be preempted and it would be fully constitutional under the Commerce Clause and the 14th Amendment (as this is what the Commerce Clause power was intended to do.)

However, Congress hasn't done that so CA's law is presumptively lawful. What modern dormant commerce clause jurisprudence has become is a non discrimination statute. The reason the wineries won Granholm v. Heald (http://en.wikipedia.org/wiki/Granholm_v._Heald) was that NY made it a crime to ship wine from CA to a NY resident but NY wineries could ship to a NY resident.

California's import prohibition bans both CA magazine sellers and NY sellers from selling to a CA resident...

That's why the interstate commerce clause (dormant) is of no use to us.

-Gene

elenius
03-28-2010, 10:01 AM
It is not very surprising that this Judge ruled this way. That's part of what Bill is complaining about. A challenge this broad ranging should have had more background work done on each of the issues.

That said, the court here makes a bunch of mistakes that are quite likely to get it overturned in the DC District Court of Appeals.

-Gene

"More background work" meaning other, smaller cases to build on, or meaning more evidence and legal work in the complaint?

I wish I could find the complaint (I know I've read it before, it was linked to in a post here on calguns) -- I remember it had pretty comprehensive evidence about AWs and hicap mags being "in common use" and useful for self defense.

ETA: NRA-ILA page about the decision: http://www.nraila.org/Legislation/Read.aspx?ID=5645

Stay tuned. Word about whether Judge Urbina's decision will be appealed, or whether a legislative remedy will be sought in Congress, or both, will certainly be forthcoming.

mastadonn
03-28-2010, 12:05 PM
I find it interesting that in the Courts' opinion there were several refences to safety advantages that would accrue to the police forces that would result from limiting citizens access to larger capacity magazines and "assualt weapons". To the extent that they went out of their way to discuss potential impacts to the police as opposed to destructive potential to other citizens.

While the Heller opinion was crafted to the specific question of firearms for defense in the home as opposed to use in militia setting, it did not completely discount the the use of firearms in the militia context.

So I would posit that a lower court' opinion, based upon placing citizens' "fire power" at a significant disadvantage to that of an oppresive government (police forces) or external threats could meet some opposition, if the case reaches SCOTUS.

hoffmang
03-28-2010, 1:36 PM
"More background work" meaning other, smaller cases to build on, or meaning more evidence and legal work in the complaint?

I wish I could find the complaint (I know I've read it before, it was linked to in a post here on calguns) -- I remember it had pretty comprehensive evidence about AWs and hicap mags being "in common use" and useful for self defense.

ETA: NRA-ILA page about the decision: http://www.nraila.org/Legislation/Read.aspx?ID=5645

The data on AW commonality could have been a bit thicker. Also, by going after all the bad regs in one lawsuit, they lacked a bit of focus. However, I give this a decent chance of reversal on appeal.

-Gene

wash
03-28-2010, 4:21 PM
I wonder if this decision might influence SCOTUS to add scrutiny guidance to the McDonald decision?

snobord99
03-28-2010, 5:14 PM
Ummmm, yeah, isn't that what McDonald is all about? Geez, Your Honor, if you're going to base your ruling on an issue that is currently pending adjudication by the U.S. Supreme Court, maybe you should, y'know, wait for their decision first.

Actually, McDonald isn't about that at all. Might they mention it? Sure. Do they have to? Not at all. So no, this is not "currently pending adjudication" by the SCOTUS.

Mulay El Raisuli
03-29-2010, 5:07 AM
The commerce clause doesn't work that way. It empowers congress (wrongly) to do anything they want. What was being discussed above is really the Dormant Commerce Clause as the rule is a state law and the argument would be that it is impliedly preempted. Congress could pass a law that says "no state or local government may regulate ammunition feeding devices" and then CA's law would be preempted and it would be fully constitutional under the Commerce Clause and the 14th Amendment (as this is what the Commerce Clause power was intended to do.)

However, Congress hasn't done that so CA's law is presumptively lawful. What modern dormant commerce clause jurisprudence has become is a non discrimination statute. The reason the wineries won Granholm v. Heald (http://en.wikipedia.org/wiki/Granholm_v._Heald) was that NY made it a crime to ship wine from CA to a NY resident but NY wineries could ship to a NY resident.

California's import prohibition bans both CA magazine sellers and NY sellers from selling to a CA resident...

That's why the interstate commerce clause (dormant) is of no use to us.

-Gene


Excellent point. Not a big worry though as there are still those other 'arrows' that will be dropping into our quiver come June.


The Raisuli

joelberg
03-29-2010, 5:17 AM
Sounds like a major loss for us here in CA. I hope when CGF appeals this post McDonald we'll win.

elenius
03-29-2010, 7:53 AM
Sounds like a major loss for us here in CA. I hope when CGF appeals this post McDonald we'll win.

- CGF wouldn't appeal it because it's not their case
- The appeal doesn't have to wait for McDonald, because it's in DC, where the 2nd amendment applies "directly".

yellowfin
03-29-2010, 8:08 AM
The commerce clause doesn't work that way. It empowers congress (wrongly) to do anything they want. What was being discussed above is really the Dormant Commerce Clause as the rule is a state law and the argument would be that it is impliedly preempted. Congress could pass a law that says "no state or local government may regulate ammunition feeding devices" and then CA's law would be preempted and it would be fully constitutional under the Commerce Clause and the 14th Amendment (as this is what the Commerce Clause power was intended to do.)

However, Congress hasn't done that so CA's law is presumptively lawful. What modern dormant commerce clause jurisprudence has become is a non discrimination statute. The reason the wineries won Granholm v. Heald (http://en.wikipedia.org/wiki/Granholm_v._Heald) was that NY made it a crime to ship wine from CA to a NY resident but NY wineries could ship to a NY resident.

California's import prohibition bans both CA magazine sellers and NY sellers from selling to a CA resident...

That's why the interstate commerce clause (dormant) is of no use to us.

-Gene

However, other gun related laws are indeed discriminatory to out of state sellers, businesses, and individuals engaged in business and thus can be attacked via DCC.