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View Full Version : If this ban is struck down, could that help California?


Goop
12-24-2012, 8:58 PM
I'm not a law professor nor am I familiar with all the legal standings of constitutional vs unconstitutional rights of gun laws. I was wondering though if this new ban is crushed in the house and senate, or if maybe the supreme court rules it as a unconstitutional. Could this set a precedent needed to overturn the assault weapon ban here in California?

Everyone is worried about it passing for good reason... but if it doesn't pass, doesn't that help us in some way?

JoshuaS
12-24-2012, 9:17 PM
This "new ban"? What is this "new ban"? Did they just pass something today?

If they made a law similar to CA's, and it was ruled unconstitutional, it would still depend on what grounds. The 2nd amendment was only recently held incorporated against the states. This does not mean, however, that it applies to the states in the same way as the federal government. Take the 5th amendment. Were the Federal government to indict me for a felony, they have to get a grand jury to issue the indictment. But the state of California very rarely uses grand juries. Wait you say, the 5th amendment states "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury" But the Bill of Rights, as originally ratified, applied only to the Federal government.

With the 14th amendment's due process and equal protection clauses, the courts have incorporated some of the bill of rights against the states as well. The doctrine behind this is called selective incorporation. Basically, whatever is deemed necessary for a state of "ordered liberty" through the due process/equal protection clauses. The court has essentially fully incorporated the 1st amendment against the states (several states had established religions well into the 19th century btw), e.g. In some cases only part of the amendment was incorporated, such as my 5th amendment example. No double jeopardy, no self-incrimination, but no need of a grand jury. Same with 8th. No cruel and unusual punishment, but bail amounts can be excessive! The 3rd amendment has yet to be incorporated except in the 2nd circuit court's jurisdiction, so in principle Brown could quarter troops in your home, until the 9th circuit ruled otherwise.

Now with Heller, McDonald, we know the court has ruled that the right to keep and bear arms 1) is a fundamental right, and hence applies to the states via incorporation 2.) That this right, understood via incorporation includes the right to self defense both in the home and out of the home. The court has not, however, ruled on 1) Whether strict scrutiny applies to state laws or federal 2) Whether the right to self defense, includes the right to defend against the government. Again, it may seem clear to you. But it could very well be ruled that the purpose of the amendment was to serve as a check against the Federal government, not against the State government, though the states must respect the right insofar as it applies to personal defense. So it could be that a national AWB would be unconstitutional, but the exact same ban at state level not ruled that way.

Legal and court matters are never black and white.

GaryV
12-24-2012, 9:17 PM
I'm not a law professor nor am I familiar with all the legal standings of constitutional vs unconstitutional rights of gun laws. I was wondering though if this new ban is crushed in the house and senate, or if maybe the supreme court rules it as a unconstitutional. Could this set a precedent needed to overturn the assault weapon ban here in California?

Everyone is worried about it passing for good reason... but if it doesn't pass, doesn't that help us in some way?

What happens in Congress wouldn't have any effect on California's law. Just because they fail to pass a ban, that would have nothing to do with California. If it does pass and gets struck down by SCOTUS though, then the California ban would be in trouble.

GaryV
12-24-2012, 9:46 PM
But it could very well be ruled that the purpose of the amendment was to serve as a check against the Federal government, not against the State government, though the states must respect the right insofar as it applies to personal defense. So it could be that a national AWB would be unconstitutional, but the exact same ban at state level not ruled that way.

Two reasons why that wouldn't work. First, against whom you are expected to use the right has nothing to do with who can regulate it. Just because the 2nd Amendment was originally intended to allow for the keeping of arms to defend against tyranny from the federal government doesn't mean that the states can restrict it. The two are unrelated concepts. Just because the right is exercised only against the federal government doesn't mean it can be limited by the state government.

Second, the Supreme Court basically already shot down that argument in Presser v. Illinois. They ruled that the state could not disarm the public because that would deprive the federal government of its constitutional prerogative to use the state militias. So if a federal AWB is struck down as violating the 2nd Amendment, no additional incorporation is needed, especially if the "useful for militia purposes" test from Miller is part of that decision. Basically if a gun is protected from the federal government under the 2nd Amendment, Presser makes it protected from the states as well. That decision essentially did incorporate the militia right in the 2nd Amendment against the states, though it wasn't discussed in those terms, since the concept of incorporation hadn't yet ben invented by the court.

Heller did need to be incorporated because the issue was the right of self-defense, which hadn't been ruled on before. But the right to arms for militia purposes has, and specifically against the states already. So if either right under the 2nd Amendment is used to strike down a federal AWB, it will automatically apply to the states as well without further incorporation. If they were found to be protected as useful for self-defense, then the decision would automatically apply to the states through McDonald, and if they're found to be protected as useful for militia purposes, then the decision would automatically apply to the states through Presser.

Goop
12-24-2012, 10:00 PM
However in both examples it sounds like it would come down to a supreme court decision in order to have any real impact to overturn the California ban. Simply "failing to pass" in congress most likely would not be enough. Although i would imagine it would at least have *some* positive influence for those in California trying to over turn our current one.

GaryV
12-24-2012, 10:04 PM
However in both examples it sounds like it would come down to a supreme court decision in order to have any real impact to overturn the California ban. Simply "failing to pass" in congress most likely would not be enough. Although i would imagine it would at least have *some* positive influence for those in California trying to over turn our current one.

Correct on the first point. Second point not so much. Failure to pass at the federal level is just as likely to convince the Cal legislature that they need to pass stricter laws for the state. Maybe even outlaw RAWs (except, of course, those belonging to the movie industry).