Rationality and AWB

[Scott Connors]

We have often remarked (fumed, really, in dismay and anger) at how bans on so-called "assault weapons" actually ban only certain ergonomic features, while leaving functionally identical firearms still legal: ie, AR-15 vs ARES SCR, AK47 vs Saiga, etc. The Volokh Conspiracy has an interesting column on a case involving imitation milk that may be on point:



It also points to Supreme Court decisions that indicate that a case may be overturned when the factual basis for it is either no longer true or never was true to begin with. The recent MD federal court decision upholding their AWB would appear to be vulnerable on this basis.

https://www.cnn.com/2014/09/03/us/philadelphia-drug-bust-house-seizure/index.html

[crazyScott90]

So what you're getting at is that we could potentially challenge our AWB laws based on similar court precedent ruling that (for other types of 'bans') the functional equivalent of the banned item being commonly owned/traded/used by people makes the ban invalid?

Sounds good to me.

[Tincon]

Rationality is not the standard for 2A claims (although it's not clear what the standard is exactly, we know from Heller that is isn't that). I'd also be wary of making sweeping comparisons of regulation of milk products to regulation of firearms. The policy considerations are substantially different.

[bohoki]

bans should need to show that the items are more dangerous than items not banned otherwise it is like banning marlboro cigarettes but saying camel cigarettes are ok

of course i think all victimless crimes should be abolished

simple ownership of an item should not be illegal it should be the "use" that is illegal

its like yelling fire in a crowded theater they do not require every one to be gagged

also you are allowed to yell fire if there is a fire

[bountyhunter]

bans should need to show that the items are more dangerous than items not banned otherwise it is like banning marlboro cigarettes but saying camel cigarettes are ok

of course i think all victimless crimes should be abolished

simple ownership of an item should not be illegal it should be the "use" that is illegal

its like yelling fire in a crowded theater they do not require every one to be gagged

also you are allowed to yell fire if there is a fire

The AWB ban is based on the established precedent that it is legal to ban firearms which pose too much threat to public safety. Same reason a Thompson submachine gun is illegal. You may not agree that an AW should be banned or that it is too much firepower to be in civilian hands, but the legal standing to ban specific firearms is in place with out violating 2A.

[oilcanhenry]

The AWB ban is based on the established precedent that it is legal to ban firearms which pose too much threat to public safety. Same reason a Thompson submachine gun is illegal. You may not agree that an AW should be banned or that it is too much firepower to be in civilian hands, but the legal standing to ban specific firearms is in place with out violating 2A.

Well then, the case can easily be made that ANY semi-automatic firearm should be made "illegal" since they have "too much firepower" like a Thompson submachine gun, which were perfectly legal to buy, own and carry before 1934.

Hell, I wish I could dig up an old poster of a farmer shooting vermin with a "Tommy-Gun", from back in the 1920's, when alcohol was still illegal to have, but full-automatic firearms were not.

With your line of reasoning, we would all be limited to owning muskets, if even that, correct? Its not the weapon; its the person who is using it, bub.

[GM4spd]

but the legal standing to ban specific firearms is in place with out violating 2A.

This. Anyone believing that states having AW bans will get overturned are
dreaming. Pete

[sholling]

Unfortunately, while heightened scrutiny and a SCOTUS ruling against the use of interest balancing in the regularly flouted Heller decision is great in theory, the fact remains that rational basis (relabeled "intermediate scrutiny") remains the defacto standard of review for 2nd Amendment cases in at least three CAs, and remains so for full capacity magazines and locked storage within the 9th (see Jackson).

I have to agree with KC Brown's analysis of the judiciary. In reality even calling the current standard of review "rational basis" is being a bit generous when the real world standard of review seems to be how a law restricting 2nd Amendment rights stacks up against a given judge's personal feelings and personal politics on the subject.

[mujiarens]

its like yelling fire in a crowded theater they do not require every one to be gagged

[gwoneg]

Unfortunately, while heightened scrutiny and a SCOTUS ruling against the use of interest balancing in the regularly flouted Heller decision is great in theory, the fact remains that rational basis (relabeled "intermediate scrutiny") remains the defacto standard of review for 2nd Amendment cases in at least three CAs, and remains so for full capacity magazines and locked storage within the 9th (see Jackson).

I have to agree with KC Brown's analysis of the judiciary. In reality even calling the current standard of review "rational basis" is being a bit generous when the real world standard of review seems to be how a law restricting 2nd Amendment rights stacks up against a given judge's personal feelings and personal politics on the subject.

You sound like you're fresh out of BarBri. Nice summation.

[sarabellum]

We have often remarked (fumed, really, in dismay and anger) at how bans on so-called "assault weapons" actually ban only certain ergonomic features, while leaving functionally identical firearms still legal: ie, AR-15 vs ARES SCR, AK47 vs Saiga, etc. The Volokh Conspiracy has an interesting column on a case involving imitation milk that may be on point:



It also points to Supreme Court decisions that indicate that a case may be overturned when the factual basis for it is either no longer true or never was true to begin with. The recent MD federal court decision upholding their AWB would appear to be vulnerable on this basis.

https://www.cnn.com/2014/09/03/us/ph...ure/index.html

Brilliant insight and application of the commerce clause, Art. 1, sec. 8, prohibiting states for discriminating against interstate commerce.

http://lawbrain.com/wiki/Commerce_Clause