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View Full Version : MA Court: Commonwealth v. McCollum, poor reasoning on 2nd/McDonald


Librarian
04-14-2011, 4:12 PM
h/t Volokh (http://volokh.com/2011/04/14/does-the-second-amendment-protect-possession-of-gun-at-a-friends-home/)

Opinion (http://weblinks.westlaw.com/result/default.aspx?action=Search&cnt=DOC&db=MA-ORSLIP&eq=search&fmqv=c&fn=_top&method=TNC&n=2&origin=Search&query=TO%28ALLAPP+ALLAPPRS%29&rlt=CLID_QRYRLT98921423922144&rltdb=CLID_DB18516423922144&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=MAOR1.0&service=Search&sp=MassOF-1001&srch=TRUE&ss=CNT&sskey=CLID_SSSA77531423922144&sv=Split&vr=1.0). (Replaced link with another found in latest version of Volokh post.)

Assuming without deciding that Heller and McDonald apply to ammunition, an issue we need not reach, the Second Amendment does not protect the defendant in this case because the Commonwealth established at trial that apartment 12 was not the defendant’s home.

Not a clean case; defendant had criminal history.

OleCuss
04-14-2011, 7:22 PM
Thank you, that was very interesting.

Oh, and I enjoyed Gene's comment as well.

BTW, I couldn't get the second (westlaw) link to work. It could be my browser, though.

CalBear
04-14-2011, 7:56 PM
Let's just redefine scrutiny to be so the burden of need is on the people, rather than the government. In other words, it'll be about how narrowly we must tailor the bill of needs, rather than how narrow and justified infringements of the bill of rights must be. 1A will get rational basis. A person wanting to speak freely will just need to show their speech activity rationally advances a cause in some way. 2A (you know, the one Madison didn't want), on the other hand, will get strict scrutiny. There must be a compelling need for self defense, the method of self defense needs to be narrowly tailored, and it needs to be the least effective means of possibly doing so. Oh wait, that's pretty much what we already have in California! :eek:

Eg: Bob lives in a dangerous neighborhood. He meets the compelling need for self defense -- barely. It needs to be narrowly tailored: he can only possess a gun between the hours of 8 PM and 4 AM, and only in his home. He will have to pick up his weapon from the police at 8, and return it to the station at 4. It also needs to be the least effective means of doing so. Bob will get a BB gun, maybe a .22 pistol.

swilson
04-14-2011, 9:03 PM
Eg: Bob lives in a dangerous neighborhood. He meets the compelling need for self defense -- barely. It needs to be narrowly tailored: he can only possess a gun between the hours of 8 PM and 4 AM, and only in his home. He will have to pick up his weapon from the police at 8, and return it to the station at 4. It also needs to be the least effective means of doing so. Bob will get a BB gun, maybe a .22 pistol.

Don't forget that even when Bob possesses his gun he cannot keep it loaded or discharge it on public or private land under any circumstance, both of which are felonies. Bob can still "bear arms" but must be loaded with a gun lock instead of ammunition... but cannot point it at or show it to anybody because that's brandishing.

OleCuss
04-15-2011, 5:15 AM
At times I find myself wondering if Scalia and company didn't deliberately leave openings for asinine rulings.

The more egregious the judicial abuses after Heller and McDonald, the stronger their ruling on scrutiny can be (due to SCOTUS politics)?

And yeah, it's idle speculation and I don't really think so, but I do wonder.