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View Full Version : An interesting take re : McDonald


Sinixstar
04-20-2010, 5:54 AM
quite an interesting article. I had wondered about the true long-term effects of McDonald, and how much would really change. It seems like in Heller there was a lot of wiggle room left to the states. Apparently, I'm not the only one who's had that question pop into their heads.

http://www.thedailybeast.com/blogs-and-stories/2010-03-03/shooting-blanks/?obref=obnetwork

I think this quote sums it up pretty well:


Heller is directly responsible for all those gun-control laws being upheld. Justice Antonin Scalia’s majority decision went out of its way to say that the right to bear arms is not infringed by many forms of gun control.


I think things like having to show proper cause for a CCW might go away, but things like extremely long waiting lists, high costs, lots of restrictions about when/where/how you can carry, registration, ownership permits, outrageous requirements for ownership - all that stuff that just makes life downright miserable - will stand.

I think once you have to get down into the trenches and argue specific details about what flies and what doesn't re: "reasonable restrictions" - we begin to lose the battle. Unfortunately SCOTUS seems reluctant to issue a blanket statement about what flies and what doesn't.

OleCuss
04-20-2010, 6:02 AM
I don't think the more legally savvy on CGN expect McDonald to do all that much in and of itself. But follow-on cases may very well result in varying levels of scrutiny which could even be strict scrutiny for at least certain situations/items.

Look for McDonald to incorporate the 2A and follow-on cases to make it meaningful.

Edit: Went through the article a bit better. I think they had a rather naive view of things. McDonald should give standing in Federal courts. One could argue that the federal courts will be able to uphold onerous gun laws as do the state courts - but it isn't that clear.

There is a whole body of law and case law which makes it difficult for one state to discriminate against the rights of the residents of another state. This gives us leverage to get rid of some of the stupidity. They're also ignoring the legislative moves in a number of locations to make the right to self-defense much more available.

McDonald won't be magical - and neither will be any of the follow-on cases. But there is a high probability that with smart moves in the courts and the legislatures there will be substantial improvement and the implementation of our rights at a level which currently cannot even be contemplated.

CnCFunFactory
04-20-2010, 6:07 AM
I keep an optimistic outlook on all things firearms related including the law. Contribute monetarily when you can, vote appropriately and be the best ambassador for the shooting sports you can be. That's about all you can do in this day and age.

Kharn
04-20-2010, 9:20 AM
Yes Heller said some of the current laws pass muster. But it does not comment on a wide variety of other laws: may-issue CCW, rosters, magazine limits, CLEO sign-offs, etc. Those are the laws we take issue with, and those are the laws that will not survive post-McDonald.

tpanfil
04-20-2010, 9:31 AM
Where does McDonald currently stand? It appears as though they have heard oral arguments. What is next, and what is the time line? Thank you for your time.

Kreature96
04-20-2010, 9:33 AM
McDonald will incorportate the 2A against the states. They will also state the scrutiny level. Even if they dont specifically state it, they have and continue to state the right is "fundamental". All fundamental rights have been given strict scrutiny. Which means a reviewing court must determine if the law in question addresses a compelling state interest and if so is [B]Narrowly tailored[B]to address that state interest. i.e. the least restrictive alternative. Several of the stupid laws in California are in trouble. How is the AW ban the least restrictive alternative? The same is true of the magazine limits, CCW may issue etc. We have all seen the statistics that clearly show these type of laws are ineffective against crime and violence which puts the state's burden of showing these are effective and the least restrictive alternative a long shot. So I am optimistic. By the way status laws will be upheld. i.e. Felons, mentally ill etc will not be able to possess guns.

OleCuss
04-20-2010, 9:35 AM
Where does McDonald currently stand? It appears as though they have heard oral arguments. What is next, and what is the time line? Thank you for your time.

Most expect McDonald to be handed down at the last possible moment which is, IIRC, June 28.

Dr Rockso
04-20-2010, 9:36 AM
Where does McDonald currently stand? It appears as though they have heard oral arguments. What is next, and what is the time line? Thank you for your time.

Last day of the term is June 28, we'll know by then.

BigDogatPlay
04-20-2010, 9:38 AM
Justice Scalia was necessarily vague in Heller, IMO, WRT other gun laws. The question was narrow, to help drive the decision, and the scope was limited to DC's draconian and outright ban. The vagueness is necessary if only because there is an entire playing field of laws and regulations out there, at least some of which will have to be litigated ono their own merits with Heller and (hopefully) McDonald as levers.

But there are, after all, limits on the First Amendment and nothing is an absolute no matter how much we wish it to be. Public safety and common sense are going to make a case for some restriction that does not amount to infringement. Felon in possession and persons properly adjudicated as mentally deficient are the two big ones to me.

Expecting McDonald to be some manner of magic bullet, if you'll pardon the expression, is not realistic. It's the second dominoe to tumble, Heller was the first[/i], but now that they've started to fall, the rest of the dominoes will as well given some time and a bit of good lawyering.

kcbrown
04-20-2010, 9:59 AM
McDonald won't be magical - and neither will be any of the follow-on cases. But there is a high probability that with smart moves in the courts and the legislatures there will be substantial improvement and the implementation of our rights at a level which currently cannot even be contemplated.

Well, so much for that, then (at least in California). There will be no "smart moves" by the California legislature except those that are designed to work against us.

The only improvements we'll see here will be through the courts. Period.

kcbrown
04-20-2010, 10:04 AM
All fundamental rights have been given strict scrutiny. Which means a reviewing court must determine if the law in question addresses a compelling state interest and if so is [B]Narrowly tailored[B]to address that state interest. i.e. the least restrictive alternative.


The court system's idea of "narrowly tailored" is laughable, because it considers a blanket ban on carry with a rules-based permit system in place to be "narrowly tailored".

You shouldn't count on the court system to give us something reasonable. However, what they give us is all we're going to get, and it's very likely to be an improvement over the current situation. So it ends up being a win, but it's not going to give us real freedom.

OleCuss
04-20-2010, 10:06 AM
Well, so much for that, then (at least in California). There will be no "smart moves" by the California legislature except those that are designed to work against us.

The only improvements we'll see here will be through the courts. Period.

I tend to agree with you, but if you take a look at what is happening in some other state legislatures - there may be ramifications in California toward the good. If nothing else, it might influence California's legislature toward a bit less stupidity.

But I agree, in California it is likely to mostly be the federal courts which will restore our rights.

wildhawker
04-20-2010, 10:08 AM
Kreature, not all forms of those rights we consider fundamental do require strict scrutiny.

It's very possible in follow-on cases that the core 2a issues receive strict scrutiny and issues like hunting intermediate; also within the realm of possibility is the Court creating "gun scrutiny" and moving away from 1A analogues. We'll likely see the scrutiny more directly addressed in Palmer/Sykes.

tpanfil
04-20-2010, 3:28 PM
Thanks guys.

Fjold
04-20-2010, 4:41 PM
Another thing that people don't seem to recognize is there will be a number of other groups in other states, who will be filing Federal cases to attack the unconstitutional laws there and those precedents will help us here. The effect of all the Federal suits will be cummulative making our fight easier.

Mulay El Raisuli
04-21-2010, 6:42 AM
Another thing that people don't seem to recognize is there will be a number of other groups in other states, who will be filing Federal cases to attack the unconstitutional laws there and those precedents will help us here. The effect of all the Federal suits will be cummulative making our fight easier.


That's a good point. I've been so worried about Palmer that I tend to forget that there's a group in TX primed & ready to go the other way.


The Raisuli