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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 08-21-2009, 8:56 PM
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Thumbs down Appeals Court: Government Can Require Gun Registration

The below from the NRA-ILA's website: http://www.nraila.org/News/Read/InTheNews.aspx?ID=12810

Appeals Court: Government Can Require Gun Registration

An appeals court in Chicago has ruled that the federal, state or local government can require all citizens to register their firearms under penalty of law. A three-judge panel of the U.S. Seventh Circuit Court of Appeals said that, even after the Supreme Court's high-profile gun rights decision last year, the Second Amendment is no obstacle to mandatory gun registration.

Read About It: CBS News

Posted: 8/20/2009

*****
The below is the linked original article:
http://www.cbsnews.com/blogs/2009/08...y5253857.shtml


August 19, 2009 7:44 PM
Appeals Court: Government Can Require Gun Registration

An appeals court in Chicago has ruled that the federal, state or local government can require all citizens to register their firearms under penalty of law.

A three-judge panel of the U.S. Seventh Circuit Court of Appeals said that, even after the Supreme Court's high-profile gun rights decision last year, the Second Amendment is no obstacle to mandatory gun registration.


The case arose out of the Chicago-area town of Cicero's mandatory registration requirement for firearms. A local man named John Justice was raided by the Cicero police on suspicion of violating business ordinances including improper storage of chemicals; the police discovered six unregistered handguns during the raid.

Justice runs the Microcosm laminating company on 55th Ave., which sells special adhesives and does custom coatings for customers, and argued in a civil lawsuit that the local ordinance violated the Second Amendment. He did not immediately respond to a request for comment on Wednesday.

In a 3-0 opinion published last Friday, the judges said that this was a different situation from the District of Columbia v. Heller case, which led the Supreme Court to strike down D.C.'s law effectively prohibiting the ownership of handguns.

"There is a critical distinction between the D.C. ordinance struck down in Heller and the Cicero ordinance," the court said in an opinion written by Judge Diane Wood, a Clinton appointee. "Cicero has not prohibited gun possession in the town. Instead, it has merely regulated gun possession under Section 62-260 of its ordinance."

If the court had merely written that the Second Amendment doesn't apply to the states (a concept called incorporation), this would not have been especially newsworthy. After all, a different three-judge panel from the 7th Circuit already has rejected the incorporation argument.

What's unusual -- and makes this case remarkable -- is that Wood went out of her way to say that even if the Second Amendment does apply to states, mandatory gun registration would be perfectly constitutional. "The town does prohibit the registration of some weapons, but there is no suggestion in the complaint or the record that Justice's guns fall within the group that may not be registered," she wrote. "Nor does Heller purport to invalidate any and every regulation on gun use."

The other judges on the panel were William Bauer, a Ford appointee, and John Tinder, a George W. Bush appointee.

I haven't been able to find the full text of Section 62-260 online (update: I've found it and attached it below), The Legal Community Against Violence's summary of firearm laws says that in Cicero, "all firearms in the City must be registered prior to taking possession of the firearm" and that registration certificates must be renewed every two years.

Alan Gottlieb, founder of the Second Amendment Foundation, said in an interview that registration is terrible public policy, especially because world history shows that it often leads to confiscation.

Last week's decision should remind us that Heller won't be the last word on gun rights, Gottlieb said. "It starts building blocks on a foundation -- you don't win everything in one case," he said. "As you and I know, criminals aren't going to register their guns. Prohibited persons aren't going to register their guns. Someone prohibited from owning a gun isn't going to register it. Registration would apply only to law-abiding citizens."

There is no national registration requirement for firearms, although anyone buying a gun from a dealer fills out a Form 4473, which the dealer must keep on file in paper form for 20 years. My home state of California says that all handguns be registered, but it's not as strict as Cicero's requirement (rifles and shotguns are exempt from registration).

David Kopel, research director at the Golden, Colo.-based Independence Institute, said: "I think Heller at least hints that (Cicero's regulation) might be unconstitutional. Registration of non-commercial transactions might be unconstitutional. At least it leaves the question open." (Kopel has pointed out that four Chicago suburbs repealed their handgun bans post-Heller.)

I happened to interview Paul Helmke, president of the Brady Campaign, earlier on Wednesday and asked him about what the Heller decision means for gun control. He replied: "Outside D.C.'s gun ban and perhaps Chicago's, there really probably aren't that many gun laws that are going to be affected by Heller. What I've argued is that Heller, in a way, took the extremes off the table. It said you can't have a total gun ban like D.C.'s. They also took the other extreme off the table, which is that anyone can have any gun, anywhere, any time."

Read literally, the Seventh Circuit's decision means that the U.S. Congress could enact a mandatory registration requirement tomorrow -- a law saying that you must report your handguns, rifles, and shotguns to the FBI and ATF or go to prison -- and at least one federal circuit would uphold it as constitutional.

But would the Supreme Court justices? A number of gun cases, including one brought by the National Rifle Association, another out of New York, and a third out of California, are headed in their direction. By next summer we may have an answer.
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Old 08-21-2009, 9:00 PM
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heh... they can try.
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Old 08-21-2009, 9:02 PM
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Wow.
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Old 08-21-2009, 9:03 PM
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So, are they going to force people to register on a list any time they exercise their first, 4th or 5th amendment rights? And how can you label something a "right" and in the same breath demand your right to be registered before you can exercise it?



We need to start holding judges and politicians accountable to the oaths they swore.
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Old 08-21-2009, 9:22 PM
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Some quotes from my quote file:

Quote:
"Contemporary scholars have little explored the preconditions of genocide. Still less have they asked whether a society's weapons policy might be one of the institutional arrangements that contributes to the probability of its government engaging in some of the more extreme varieties of outrage. Though it is a long step between being disarmed and being murdered (one does not usually lead to the other) it is nevertheless an arresting reality that not one of the principal genocides of the twentieth century, and there have been dozens, has been inflicted on a population that was armed." - Daniel D. Polsby, Washington University Law Quarterly, Volume 73, Number 3, Fall 1997
Quote:
"When the history of the 20th century is finally written, one of its key features will be the wanton slaughter of more than 170 million people, not in war, but by their own government. The governments that led in this slaughter are the former USSR (65 million) and the Peoples Republic of China (35-40 million). The point to remember is that these governments were the idols of America's leftists. Part of the reason for these and other tyrannical successes was because the people were first disarmed." - Walter E. Williams, Professor of Economics at George Mason University, in a commentary for the April 2001 issue of America's First Freedom.
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Old 08-21-2009, 9:31 PM
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Swiper no Swiping, Swiper no Swiping!

*snap* oh man!

only if it were that easy in real life....
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Old 08-21-2009, 9:35 PM
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Originally Posted by pnkssbtz View Post
So, are they going to force people to register on a list any time they exercise their first, 4th or 5th amendment rights? And how can you label something a "right" and in the same breath demand your right to be registered before you can exercise it?



We need to start holding judges and politicians accountable to the oaths they swore.
I wonder what the courts considers the meat of a compelling state interest in this case? Do they have the luxury of avoiding the obligation to engage a compelling interest argument without incorporation?
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Old 08-21-2009, 9:48 PM
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This just keeps getting more and more ridiculous.
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Old 08-21-2009, 9:52 PM
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I wonder what the courts considers the meat of a compelling state interest in this case? Do they have the luxury of avoiding the obligation to engage a compelling interest argument without incorporation?
You've exceeded my legal knowledge.

Could you please expand on the "Compelling Interest" part so that I may understand better?
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Old 08-21-2009, 10:03 PM
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Originally Posted by pnkssbtz View Post
You've exceeded my legal knowledge.

Could you please expand on the "Compelling Interest" part so that I may understand better?
The compelling interest test is applied under strict scrutiny when a fundamental right is involved. The test determines whether the state has a compelling interest that will allow a law to restrict or regulate a fundamental right, and the scrutiny ensures that the restrictions are as minimally invasive as possible to achieve the interest.

MY question is, without incorporation and 14th am. protection against the states, does the 2nd still not fall under strict scrutiny?
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Old 08-21-2009, 10:12 PM
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The compelling interest test is applied under strict scrutiny when a fundamental right is involved. The test determines whether the state has a compelling interest that will allow a law to restrict or regulate a fundamental right, and the scrutiny ensures that the restrictions are as minimally invasive as possible to achieve the interest.

MY question is, without incorporation and 14th am. protection against the states, does the 2nd still not fall under strict scrutiny?
Maybe, but probably won't go there. At the Hastings symposium in February, the general feeling was that strict scrutiny wouldn't be the requirement, because, for example, it would require review of things like felons rights to guns for self defense, and that would be, ah, unpopular among judges and other LEO. Calvin Massey's Second Amendment Decision Rules (not yet available) would be the article likely to be helpful - but it's still just informed-by-training speculation.
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Old 08-21-2009, 10:23 PM
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Originally Posted by pnkssbtz View Post
So, are they going to force people to register on a list any time they exercise their first, 4th or 5th amendment rights? And how can you label something a "right" and in the same breath demand your right to be registered before you can exercise it?



We need to start holding judges and politicians accountable to the oaths they swore.
+1
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Old 08-21-2009, 10:28 PM
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Nice, the judges were appointed by Ford, Bush and Clinton. Asshats.
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Old 08-21-2009, 10:38 PM
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A: Why have they been after registration for so long?


Q: Because you have to have registration before confiscation .


Do you realize that they have been after a registration scheme in this country for decades and decades and decades and decades?

I salute all you Patriots before me who have stopped this nightmare from ever taking place. We cannot let this happen.
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Old 08-21-2009, 10:52 PM
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A: Why have they been after registration for so long?


Q: Because you have to have registration before confiscation .


Do you realize that they have been after a registration scheme in this country for decades and decades and decades and decades?

I salute all you Patriots before me who have stopped this nightmare from ever taking place. We cannot let this happen.
just think of the land locked states where tragic boating accidents don't happen.
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Old 08-21-2009, 11:21 PM
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I'm curious to see how SCOTUS will view these requirements in light of Chicago. I hope they will knock down registration at best, at worst I hope they will view it as a one time thing (at gun purchase like it already is).

Greg
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Old 08-21-2009, 11:47 PM
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I'm curious to see how SCOTUS will view these requirements in light of Chicago. I hope they will knock down registration at best, at worst I hope they will view it as a one time thing (at gun purchase like it already is).
McDonald contains a complaint about re-registration. Re-registration is likely unconstitutional, but, as you can see here, lots of the right people aren't sure that registration is unconstitutional.

-Gene
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Old 08-21-2009, 11:57 PM
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McDonald contains a complaint about re-registration. Re-registration is likely unconstitutional, but, as you can see here, lots of the right people aren't sure that registration is unconstitutional.

-Gene
Assuming strict scrutiny, is it a plausible compelling interest argument that the gov has the need for registration in order to ensure effective maintenance of a standing militia under the modified Miller test?
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Old 08-21-2009, 11:59 PM
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Assuming strict scrutiny, is it a plausible compelling interest argument that the gov has the need for registration in order to ensure effective maintenance of a standing militia under the modified Miller test?
Only if the .gov starts issuing weapons....
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Old 08-22-2009, 12:00 AM
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Assuming strict scrutiny, is it a plausible compelling interest argument that the gov has the need for registration in order to ensure effective maintenance of a standing militia under the modified Miller test?
Yes, however there is an argument against still buried in there.

-Gene
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Old 08-22-2009, 12:05 AM
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McDonald contains a complaint about re-registration. Re-registration is likely unconstitutional, but, as you can see here, lots of the right people aren't sure that registration is unconstitutional.
Yup.

As we progress, registration may not be that harmful as long as a full RKBA exists. If you can't take someone's guns away, then the registration becomes "noise".

While that's not good, it's not terrible. Especially for many/most Californians.

With 300 million guns in the US, pretty soon LEO MDT (mobile data terminal) displays indicating "owns guns" will be the rule and not the exception. Familiarity will breed contempt and the gunowner's status will become ordinary and unremarkable and just another datapoint like brown hair or blue eyes.

I own a sh*tload of guns. Many of them were bought thru FFLs in CA with full 4473/DROS paper trail (even long guns have paper back at the dealer that could be traced) plus a bunch of reg'd AWs. I do have firearms from the 1980s that were legally acquired unpapered or received from my dad - but even some of those had paper on them. So don't think that we're in some sort of 'pure bliss' state before any such national scheme would come in place.

Let's worry about registration less than getting full RKBA: even if all your guns were legally unpapered, I'd say 60+% of "True Gunnies Like Us" are already identifiable as firearm owners thru credit card records, subscription records for Shotgun News or Guns & Ammo, order patterns from Cheaper-Than-Dirt, etc.
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Old 08-22-2009, 12:05 AM
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Yes, however there is an argument against still buried in there.

-Gene
That the gov itself would need to provide for, organize, facilitate, and maintain that militia to validate the argument?
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Old 08-22-2009, 12:10 AM
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That the gov itself would need to provide for, organize, facilitate, and maintain that militia to validate the argument?
That's the argument. However, the 1792 Militia act gives the other side a far more plausible argument than usual that they need to know where the guns are...

-Gene
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Old 08-22-2009, 12:13 AM
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Would registerable 'militia' arms likley go to all arms ever considered (in any varation of or with any potential for) service use or only those arms in contemporaneous use by the US armed forces at the time of registration?

IOW, if compelled registration is there to ensure we, as citizens, are properly accounted for (including our personally-owned militia weapons) and ready to be called up, woundn't it also be logical that the same interest would substantiate our need for acccess to modern militia weapons capable of performing to the demands of the modern battlefield?
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Old 08-22-2009, 12:20 AM
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That's the argument. However, the 1792 Militia act gives the other side a far more plausible argument than usual that they need to know where the guns are...

-Gene
Would that not then only apply to weapons intended for use in militia capacity, i.e. the mentioned '1 rifle' in the 1792 act? How would they apply registration to personally owned weapons under strict scrutiny? That would seem to be a broader scope than a 'narrowly tailored' restriction to meet the compelling interest test.
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Old 08-22-2009, 12:33 AM
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Would that not then only apply to weapons intended for use in militia capacity, i.e. the mentioned '1 rifle' in the 1792 act? How would they apply registration to personally owned weapons under strict scrutiny? That would seem to be a broader scope than a 'narrowly tailored' restriction to meet the compelling interest test.
As I said, it's an argument. I don't know that it's a winning argument...

-Gene
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Old 08-22-2009, 1:09 AM
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Even if we were to see the development of some sort of National Registration, wouldn't States with their own RKBA and/or militia laws trump a Federal effort? This question becomes all the more interesting considering the recent trend of States exerting their 10th Amendment powers.

Of course, this may not bode well for CA, but it'd be nice to know National Registration wouldn't come easy. And this is not even factoring in the political implications...
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Old 08-22-2009, 1:16 AM
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The Founders were so wise in that they gave the States the powers they needed to act as a buffer against Federal usurpation.
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  #29  
Old 08-22-2009, 1:23 AM
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Originally Posted by FreedomIsNotFree View Post
Even if we were to see the development of some sort of National Registration, wouldn't States with their own RKBA and/or militia laws trump a Federal effort? This question becomes all the more interesting considering the recent trend of States exerting their 10th Amendment powers.
It remains a very open question that probably resolves that the Federal is supreme. However, the politics on this at the Federal level are much better than at the state.

-Gene
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  #30  
Old 08-22-2009, 2:19 AM
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I doubt they'll want to do anything to validate a modern militia. Doing so might make an argument for any AWB very difficult.
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  #31  
Old 08-22-2009, 4:05 AM
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You've got to be kidding me. They're going to turn a lot of law abiding citizens into criminals with this BS. Why are they so afraid of honest, tax paying, law abiding American citizens?

Last edited by nooner; 08-22-2009 at 4:09 AM..
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  #32  
Old 08-22-2009, 6:41 AM
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That's the argument. However, the 1792 Militia act gives the other side a far more plausible argument than usual that they need to know where the guns are...

-Gene
Just wondering, if the 1792 Militia Act covers weapons useful for Militia (Military) service, wouldn't that make NFA unconstitutional since a modern military rifle is FA?
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Old 08-22-2009, 6:50 AM
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heh... they can try.
They would be well advised to study this:

http://lawreview.law.wfu.edu/documents/issue.43.837.pdf

Goes into some detail concerning the failure of registration schemes, and the general non-compliance that results.
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  #34  
Old 08-22-2009, 6:51 AM
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You've got to be kidding me. They're going to turn a lot of law abiding citizens into criminals with this BS. Why are they so afraid of honest, tax paying, law abiding American citizens?
They don't like citizens, they like slaves.
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In Pennsylvania Your permit to carry concealed is called a License to carry fire arms. Other states call it a CCW. In New Jersey it's called a crime.
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  #35  
Old 08-22-2009, 9:20 AM
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Yup.

As we progress, registration may not be that harmful as long as a full RKBA exists. If you can't take someone's guns away, then the registration becomes "noise".

While that's not good, it's not terrible. Especially for many/most Californians.

With 300 million guns in the US, pretty soon LEO MDT (mobile data terminal) displays indicating "owns guns" will be the rule and not the exception. Familiarity will breed contempt and the gunowner's status will become ordinary and unremarkable and just another datapoint like brown hair or blue eyes.

Let's worry about registration less than getting full RKBA: even if all your guns were legally unpapered, I'd say 60+% of "True Gunnies Like Us" are already identifiable as firearm owners thru credit card records, subscription records for Shotgun News or Guns & Ammo, order patterns from Cheaper-Than-Dirt, etc.

These are very good points Bill I didn't think about the whole idea of desensitization. I would like to believe that LEO's will treat gun ownership as just another attribute of the individual but I'm not holding my breath that the officer wouldn't be on heightened alert if he/she knew someone had guns. I don't say this to be rude to the LEO's out there I'm just stating that it's just natural to be a little on edge (or treat someone differently) when you are after someone and you know that they have a gun.

Greg
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  #36  
Old 08-22-2009, 9:29 AM
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McDonald contains a complaint about re-registration. Re-registration is likely unconstitutional, but, as you can see here, lots of the right people aren't sure that registration is unconstitutional.

-Gene
If it was a one-time registration then I would not see an obstacle to that, given the text of Heller and other cases. Kind of like California's handgun registration at the time of purchase.

My deeper fear about registration is an overzealous government....

Greg
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Old 08-22-2009, 9:36 AM
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Just wondering, if the 1792 Militia Act covers weapons useful for Militia (Military) service, wouldn't that make NFA unconstitutional since a modern military rifle is FA?
That's not what Scalia said after Bush's Solicitor General tried to torpedo Heller by bringing up FA in the first place. Scalia's basic argument was that NFA weapons are dangerous and unusual. Yes I know its a circular argument, but for now we can have a real right to the rest of the arms or no right to arms at all.

-Gene
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  #38  
Old 08-22-2009, 10:01 AM
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Originally Posted by hoffmang View Post
That's not what Scalia said after Bush's Solicitor General tried to torpedo Heller by bringing up FA in the first place. Scalia's basic argument was that NFA weapons are dangerous and unusual. Yes I know its a circular argument, but for now we can have a real right to the rest of the arms or no right to arms at all.

-Gene
But did Scalia say that registration for the purposes of maintaining the Militia was within the scope of the second amendment? Excuse my ignorance, but it seems that registration and the militia go hand in hand with each other if I understand the experts. So if the legislators are not going to maintain the militia, then registration is unreasonable. And if they do maintain a militia for the purposes of registering firearms, then so called "NFA" weapons, having a useful purpose in the militia should be accessible without tax stamp for the purposes of military readiness of the militia. Personally, if I were active duty and required to carry a rifle, I don't think I'd want to be restricted to semi-auto, or bolt and lever action only. As for them being unusual, how many police departments, and how many military personnel, including National Guard have these weapons.

I understand that NFA is out of reach at the moment, my concern is more about registration?

Last edited by Roadrunner; 08-22-2009 at 10:04 AM..
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  #39  
Old 08-22-2009, 10:28 AM
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So if the legislators are not going to maintain the militia, then registration is unreasonable.
As I said above, that's the argument. However I'm not inclined to believe its a strong argument for us.

-Gene
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  #40  
Old 08-22-2009, 10:45 AM
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As I said above, that's the argument. However I'm not inclined to believe its a strong argument for us.

-Gene
Damn, and I thought I had this all wrapped up.
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