PDA

View Full Version : NFA and Heller


Hopi
11-23-2007, 10:57 AM
Originally posted by Gene:
2. The real question is what scrutiny is applied and to which entities. Will rational basis apply to arms while intermediate scrutiny applies to the owners? That's going to be the real question that will have to get answered in courts all around. The 9th Circuit may not be the best court to ask that question directly in.


With respects to the manufacture, sale, and ownership of these tools, an interesting question or two will arise while defining the parameters for scrutiny.
-What entity will be tasked with defining "rational scrutiny" with regards to arms and/or owners? "Shall not be infringed" clearly provides guidance, and certainly prohibits laws/regulations being drafted that limit or prevent citizen-ownership. This seems to translate to the manufacture and sale as well.
-Is there not a sufficient definition of the eligible arms owner found within the context of "citizen"? At what point is it conceded that military arms and hardware are not necessarily applicable to "citizen-ownership", relegating bombs, warships, and yes, NFA items to regulation/prohibition?

-How do we, as citizens, define reasonable ownership? What level of sophistication/effectiveness should be within our right to ownership?

CCWFacts
11-23-2007, 1:11 PM
To clarify: They have three standards to choose from: strict scrutiny, intermediate scrutiny, and rational basis. They can choose a standard for the people it applies to, and a standard for the guns it applies to. These three standards have sub-variations in them also.

Rational basis: the government can do whatever it wants
Strict scrutiny: the government must defend its regulations as being the minimum necessary to achieve some compelling need.
Intermediate: in between the above.

How do we, as citizens, define reasonable ownership?

That's an individual question, and the only citizens who matter at this point are the twelve who are Supreme Court justices.

I personally think all guns are dangerous, and the important thing is to regulate who can have them (solid BG checks), rather than hysterical fights over technical or cosmetic features. Flash hiders and barrel shrouds and pistol grips make no difference to anything. Technical features, like mag capacity, semi-auto vs. full-auto, etc, are not likely to have any measurable impact on crime. But making it difficult for dangerous people to get guns will help. I hope their ruling goes along those lines.

KenpoProfessor
11-23-2007, 1:42 PM
I personally think all guns are dangerous .

So are swimming pools, cars, and hatchets, but you don't seem them regulating them like firearms. We had more drownings this year than deaths by gun fire, and you could triple or quadruple that in car accidents. Everything is inherently dangerous, from getting in the tub to having sex, but there's no reason for all the regulations because Darwin gets his man/woman.

The sentence for stupidity is death, and you don't get a second chance.

Have a great gun carryin' Kenpo day

Clyde

Hopi
11-23-2007, 1:58 PM
So are swimming pools, cars, and hatchets, but you don't seem them regulating them like firearms. We had more drownings this year than deaths by gun fire, and you could triple or quadruple that in car accidents. Everything is inherently dangerous, from getting in the tub to having sex, but there's no reason for all the regulations because Darwin gets his man/woman.

The sentence for stupidity is death, and you don't get a second chance.

Have a great gun carryin' Kenpo day

Clyde

Perception of intention plays a dangerous and far bigger role than it should here........imagine background checks for swimming pools and the accompanying accusations of child-murderer and pet-drowner for prospective applicants........guns are falsely portrayed to be used generally with mal-intent, the ignorant-media-drunk-soccer-moms will accept this and regurgitate it as gospel.

It does not matter that swimming pools and cars kill more innocent people than guns each year, it only matters that Patrick Purdy had bad intentions and he chose a gun as a tool........

Preaching to the choir.......

CCWFacts
11-23-2007, 4:58 PM
Swimming pools and cars are, in fact, highly regulated, just in different ways from how guns are regulated. Hatchets aren't nearly as regulated, because, despite their inherent danger, they don't cause that much harm every year, except to trees.

I personally hope that "strict scrutiny" applies to all regulations on firearms. I think that NICS and various other "who" laws would still survive strict scrutiny, but features bans ("what" laws) would mostly fall. That's what I would like to see happen. But I'm not a Supreme Court Justice so it doesn't matter what I think.

My point in all this is, regulating "what" is pointless, because all guns are dangerous. The only regulations that might be productive are "who" regulations, not "what" regulations. I hope that that point gets understood by our court system, in the Heller case and the post-Heller cases.

falawful
11-23-2007, 5:21 PM
"and the important thing is to regulate who can have them (solid BG checks), "

No, no, NO! There is NO need to regulate who CAN have them only those that CAN'T!

Which do you think is easier trying to regulate 100% of the population when they buy those icky guns or the (SWAG here) 5% that are felons or can't have firearms?

Isn't it easier to more tightly regulate felons? The only thing is that it has to get DONE. I mean hell, how many prosecutions actually occur for lying on 4473s?

Scarecrow Repair
11-23-2007, 7:18 PM
Swimming pools and cars are, in fact, highly regulated, just in different ways from how guns are regulated. Hatchets aren't nearly as regulated, because, despite their inherent danger, they don't cause that much harm every year, except to trees.

There are many MANY things which are regulated and affect far fewer lives than even hatchets. The decisions to regulate have almost nothing to do with effectiveness.

m03
11-23-2007, 8:52 PM
"and the important thing is to regulate who can have them (solid BG checks), "

No, no, NO! There is NO need to regulate who CAN have them only those that CAN'T!

Which do you think is easier trying to regulate 100% of the population when they buy those icky guns or the (SWAG here) 5% that are felons or can't have firearms?

Isn't it easier to more tightly regulate felons? The only thing is that it has to get DONE. I mean hell, how many prosecutions actually occur for lying on 4473s?

IIRC, "felons" can have firearms if they manufacture the firearm themselves. The whole reduced-rights thing didn't come into play until the 1968 GCA.

I disagree with the notion of having reduced-rights citizens just as I do with GC in general. If a criminal served their time, and was let free, all rights should be completely restored.

A sub-class of citizens that are permanently unable to restore their rights isn't exactly great for society, seeing as now they've basically been limited *to* a life of crime. What's next, having "felons" only count as 3/5 of a person during the census? No 1st amendment rights?

I think the 1968 GCA is in line to be shot down ahead of the 1934 NFA if this case goes the way it should.

and the important thing is to regulate who can have them (solid BG checks)

I couldn't disagree more. What happens the day that laws are passed deeming people who speak out against the government as felons (or terrorists or whatever)?

The notion of government regulation goes completely against the idea of inalienable/unalienable rights.

Scarecrow Repair
11-23-2007, 10:50 PM
I couldn't disagree more. What happens the day that laws are passed deeming people who speak out against the government as felons (or terrorists or whatever)?

The notion of government regulation goes completely against the idea of inalienable/unalienable rights.

I just finished reading the Deacons for Defense book and couldn't agree more. The KKK committed so many actions that were blatantly illegal and yet the cops helped them because half the cops were KKK. The KKK would beat up picketers and marchers and when they were done, the cops who had been standing around watching would arrest the victims for disturbing the peace. It wasn't until the Deacons started armed neighborhood patrols and stood armed guard over the picketers and finally shot a couple of KKK that the KKK showed their true colors and left them alone.

Letting the government make decisions on who gets to have inalienable rights is just plain wrong. I dare anybody to read this book and think otherwise.

adamsreeftank
11-24-2007, 2:04 AM
If I'm not mistaken, even the founding fathers felt some people (IE, habitual criminals) should not have weapons.

I tend to think that instant background checks would not be entirely unreasonable.

VegasND
11-24-2007, 4:27 AM
The problems is: Who gets to decide you are disqualified? A current example is anyone accused of domestic violence...

It might be best to follow Heinlein's example from a novel where a merchant was given a reward from the equivalent of the chamber of commerce for killing robbers. IOW don't control the weapon, encourage society to curb sociopathic behavior as it happens.


If I'm not mistaken, even the founding fathers felt some people (IE, habitual criminals) should not have weapons.

I tend to think that instant background checks would not be entirely unreasonable.

tyrist
11-24-2007, 6:02 AM
Just to follow up VegasND

Most people who are accused of domestic violence are already drug addicts and convicted felons. Not everyone but for the most part your domestic violence incidents occur with people who have long rap sheets.

VegasND
11-24-2007, 6:27 AM
Your important word is "most."
The problem with laws of this type is they assume "ALL" and since it's the law, right or wrong, it's still the law. Our Zero Tolerance (Intelligence) culture brooks no exception.

Just to follow up VegasND

Most people who are accused of domestic violence are already drug addicts and convicted felons. Not everyone but for the most part your domestic violence incidents occur with people who have long rap sheets.

Bruce
11-24-2007, 9:05 AM
Just to follow up VegasND

Most people who are accused of domestic violence are already drug addicts and convicted felons. Not everyone but for the most part your domestic violence incidents occur with people who have long rap sheets.


Like all those cops who are or were put of work because of DV laws? Those people with long rap sheets? :rolleyes: Sad thing is a lot of people who are accused of DV have NO prior record.

hoffmang
11-24-2007, 10:22 AM
So let me comment on three reasonable regulations, two of which have been mentioned here.

1. Accused of Domestic Violence. This doesn't seem like a horribly incorrect restriction until the case is complete. Once complete some DV's should have their rights revoked and some should not. Then some should have the right to petition for a rights restoration. Today, because the Second isn't yet recognized, these last two things don't happen. Later, these are going to happen because you can't be denied a fundamental right with due process. We have to have systems that deny people fundamental rights after due process or you'd have a gang banger knocking on your front door today.

2. Felon bar. Felons have been judged by an impartial court of law as felons. There are some arguments that too many things are felonies, but that's not directly on point. The key to this again is a rights restoration process via the executive or courts. This system exists but Congress has denied funding. With the Second not recognized as a right, Congress could get away with it. Soon that will not be the case.

3. Brandishing laws. No matter how absolute a right the right to keep and bear arms, there is a class of behavior that even the most pro gun folks will agree is brandishing. None of us like noobs giving us muzzle sweeps at the range. Laws that make brandishing a crime (truly waving a gun around in a threatening manner when there is no threat or imminent harm) are going to pass scrutiny. Now today, as applied, these laws are probably violations, but I don't think any one here would support the right of some thuggish guy to wave his handgun around in a McDonalds. If he's polite and open carrying - well that's protected. Kind of like fighting words restrictions to the first amendment.

-Gene

m03
11-24-2007, 10:32 AM
If I'm not mistaken, even the founding fathers felt some people (IE, habitual criminals) should not have weapons.


Perhaps you could point to where that's stated in our founding documents, because I don't remember seeing that.

Or are you talking about slaves?

Hmmmm.

hoffmang
11-24-2007, 3:39 PM
Perhaps you could point to where that's stated in our founding documents, because I don't remember seeing that.

Or are you talking about slaves?

Hmmmm.

The same guys who wrote the Federal Constitution also wrote the State Constitutions and the State Laws the proceeded the Constitution (think Articles of Confederation era.) They put RKBA in both sets of Constitutions and comfortably had laws on the books in Virginia and Massachusets that assumed that public drunks, lunatiks (sic), and the feloniously violent could not keep and bear arms. I'd suggest you do some googling and read some of the other side's material because the cites are correct on this issue and its pretty good sense.

I mean, if some one commits capital murder, his gun rights aren't the number one right he's worried about losing. That whole right to life, liberty, and pursuit of happiness thing can be taken away for certain felonies via lethal injection.

-Gene

LAK Supply
11-24-2007, 4:10 PM
You are correct.... one of the animals that some Founders felt should be unarmed were politicians. Such animals should be in fear of their lives if they did not abide by the will of the people they were to represent.


If I'm not mistaken, even the founding fathers felt some people (IE, habitual criminals) should not have weapons.

I tend to think that instant background checks would not be entirely unreasonable.

m03
11-24-2007, 7:58 PM
The same guys who wrote the Federal Constitution also wrote the State Constitutions and the State Laws the proceeded the Constitution (think Articles of Confederation era.) They put RKBA in both sets of Constitutions and comfortably had laws on the books in Virginia and Massachusets that assumed that public drunks, lunatiks (sic), and the feloniously violent could not keep and bear arms. I'd suggest you do some googling and read some of the other side's material because the cites are correct on this issue and its pretty good sense.


Slippery slope. Again, what is to become of us when "gun nuts" (or libertarians, or Green party members, etc.) are judged to be mentally ill and therefore subject to disarmament?

That's a tactic that the Chinese gov. has used for many years to rid themselves of political/social opposition by judging them mentally ill and permanently jailing them.

State laws mentioned above are another matter entirely. How nicely would those play along with the 14th amendment?

I mean, if some one commits capital murder, his gun rights aren't the number one right he's worried about losing. That whole right to life, liberty, and pursuit of happiness thing can be taken away for certain felonies via lethal injection.

That goes along with my previous statements...if they are not reformed enough to be reinstated with full citizenship rights, they should not be released.

The "felon" moniker is something that's used to dehumanize these people. Should a former felon not have the right to freedom of religion too, since he might become a Jihadist and blow himself up in a crowded area?

I'm making alot of what-ifs here, I just find it rather peculiar that those types of limits were included in other preceeding law texts, but left out of the final federal amendments. I happen to think that it was intentional. Not that it really matters, considering the current state of affairs with laws that grossly violate our rights. Anyway, it's been several years since I read all the old laws and arguments, so I'm withdrawing from further commentary. Flame away.

hoffmang
11-24-2007, 8:21 PM
Slippery slope. Again, what is to become of us when "gun nuts" (or libertarians, or Green party members, etc.) are judged to be mentally ill and therefore subject to disarmament?


That has nothing to do with guns. It's a lot quicker and easier to just declare them mentally ill and a danger to society and lock them away following your logic. Our defense to that is and always has been a separate judiciary which China doesn't have and the fact that we already own arms generally.

Your hypotheticals don't make sense when you take guns out of the equation and therefor they also don't make sense with guns in the equation. What is going to change is that the Judiciary is now going to obligated to take the right to arms seriously.

And why are you defending felons? Are you a repentant one or something? There is an argument that we should roll back the disablement for felons to only felons of crimes of moral turpitude only, but beyond that it's just a tinfoil hat position. If you want to try to keep felons in jail you need to change sentencing law and not firearms law. I see a very strong case that those who prove by actions that they are anti-socially violent shouldn't be trusted with arms in the future but I can understand why we don't need to lock everyone up forever because they pulled an armed robber when young and dumb. If they should have an exception because they were otherwise law abiding and killed their husband in bed with is mistress or something, then they should apply to have the bar removed and in a post Heller/Parker world those hearings will exist and be just.

-Gene

m03
11-24-2007, 8:41 PM
following your logic.

Not my logic, thanks. I was only making a point that such a thing isn't very far off in our neck of the woods, IMHO.


Your hypotheticals don't make sense when you take guns out of the equation

Which is why I included a hypothetical that did not involve weapons but instead involved freedom of religion.

And why are you defending felons?

I'm not defending felons. I'm defending the right of people to not be permanently rendered a member of an underclass based on prior mistakes that they have *already* served their time for and have been released for integration into society.

If you're thinking "felons" == currently incarcerated or parolees, that's not what I'm saying.

Are you a repentant one or something?

And this bit of assumption is exactly the type of thing that I expected, and is subsequently the only reason I broke my promise and replied.

In a word, no. In more than a word, I'm as far from felon as you can get. I'm a private citizen with an absolutely spotless record (not even so much as a speeding ticket, ever) and am also a former NFA owner. Had I not moved to CA, I'd be a current NFA owner.


If you want to try to keep felons in jail you need to change sentencing law and not firearms law.

That's fine, but it doesn't prevent me from being justified in making the argument nonetheless. I'm only talking Federal law here too, which *did not exist prior to the 1968 Gun Control Act*, bringing us full circle.