The Down Range Forum
Member Section => Politics & RKBA => Topic started by: tombogan03884 on August 20, 2009, 02:40:24 PM
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http://volokh.com/archives/archive_2009_08_16-2009_08_22.shtml#1250794427
Last week, the 7th Circuit Court of Appeals decided a case involving
the Cicero, Illinois, gun registration ordinance. Full coverage of the
decision is available in an [1]article for CBS News, by Declan
McCullagh. (And be sure to check out Declan's new [2]Taking Liberties
weblog.) The decision is written by Supreme Court short-list Judge
Diane Wood.
The Wood opinion first cites circuit precedent, accurately, for the
fact that the Second Amendment is not incorporated in the Seventh
Circuit. The decision goes on, however, to declare that the Second
Amendment would not be violated even if it did apply. That portion of
the decision has very little reasoning; it simply says that Cicero
(unlike D.C., in Heller) does not ban guns. Ergo, the Cicero
registration law is constitutional.
The Wood opinion quotes some language from Heller, which provided a
non-exhaustive list of presumptively constitutional gun control laws.
Yet this list, to the extent that it is relevant, cuts against the
Cicero ordinance. Included in the Heller list are: "laws imposing
conditions and qualifications on the commercial sale of arms." This
would suggest that the gun registration system created by the federal
Gun Control Act of 1968 would probably be upheld. The gun is
registered at the time of sale, and the registration paperwork (the
federal 4473 forms) must be retained by the dealer. The forms are
available to law enforcement, without need for a warrant, in the
course of bona fide criminal investigations. The 1968 GCA was a
compromise; it created registration (which was the primary objective
of gun control advocates at the time) but had the registration records
maintained in decentralized locations (at the dealers) rather than
consolidated by the federal government (since Second Amendment
advocates worried that centralized registration might one day be
abused in order to implement gun confiscation, [3]as it had been under
Nazis).
Cicero's ordinance, however, goes far beyond registration of
"commercial sale," and requires that anyone who simply possesses a gun
must re-register it every two years. Accordingly, the Cicero ordinance
is not within the scope of Heller's presumptively constitutional laws.
The Wood court, if it wanted to provide dicta about the
constitutionality of registration, should have provided some legal
analysis, rather than merely asserting that the Cicero ordinance was
constitutional. (The CBS article explains some other features of the
Cicero law; the ban on laser scopes strikes me as almost certainly
unconstitutional, and the ban on slingshots seems dubious.)
A second issue in the news has been the fact that when President Obama
spoke at the Phoenix Convention Center recently, several protestors on
the sidewalk outside the center carried firearms openly, as is lawful
in Arizona. I've been the Phoenix Convention Center, which is immense.
There is no possibility that a person with a gun outside the Center
could pose the slightest threat to a person speaking in one of the
rooms inside the Center. The White House, commendably, said that the
President had no objection to the protesters. However, I think that
the protesters probably hurt, rather than helped, the Second Amendment
cause. This [4]article in the Christian Science Monitor quotes me to
that effect. I did an iVoices.org podcast on the topic, to which I
will provide a link when it is uploaded.
Finally, shame on MSNBC for dishonestly injecting racism into the
controversy, and claiming that the gun carrying may have had "racial
overtones." Actually, as Newsbusters has [5]pointed out, the black
rifle was being carried by a black man.
References
1. http://www.cbsnews.com/blogs/2009/08/19/taking_liberties/entry5253857.shtml?tag=contentMain;contentBody
2. http://www.cbsnews.com/blogs/2009/08/19/taking_liberties/entry5250967.shtml
3. http://www.stephenhalbrook.com/law_review_articles/Halbrook_macro_final_3_29.pdf
4. http://www.csmonitor.com/2009/0819/p02s01-ussc.html
5. http://newsbusters.org/blogs/kyle-drennen/2009/08/18/msnbc-no-mention-black-gun-owner-among-racist-protesters
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Ya want ta give us short attention span types the 'cliff notes'? ;)
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Those ARE the Cliff notes ;D
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Here are the Cliff notes of the Cliff notes Haz. The Heller case, like all pioneering cases, was broadly worded. This leads to a massive amount of litigation. Federal judges say WTF and punt. Its then up to the appeals courts to figure out the details. That's what we are seeing. The good news is that the question is no longer whether you have a right to a gun, but rather what constitues reasonable regulations. Apparently bi-annual registration, a ban on laser sights and assault sling shots qualifies. This is only binding in the 7th circuit. Another court might disagree. This is when it hits SCOTUS. This wil take years to sort out. Just like abortion, antis will try new restrictions hoping some will stand up. Until the Court sets a clear rule, the dance will continue. The million dollar question is whether the 2A is binding on the states. Stay tuned.
FQ13
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Registration should NOT be legal!
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Registration should NOT be legal!
Registration has been a fact since the GCA 68, the only catch is that the records are not centralized, they are kept by various dealers and are available to LE with out a warrant .
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Registration should NOT be legal!
Agreed, but understand that your guns already are registered with the 443. Unless you got them by inheiritance or a private sale there is a record, its just a question of how many hoops the cops have jump through to get it. Personally, I believe that if you think the instant background check records really are destroyed without a "back up" being stored you're a sucker. I don't care what the law says, I think ATF has "destroy those records" right below "wash the cat" on their to do list.
FQ13
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This is not without precedent. They have been doing this in MA for years. Every gun I own is registered with the Firearms Bureau in Boston. It's either that or I am a felon.....do people have them without being registered?
Don't know, don't care, wouldn't bother me, shouldn't bother me, none of my business........nobody's business but the person who is Federally within his or her rights....
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The million dollar question is whether the 2A is binding on the states. Stay tuned.
FQ13
In your opinion, would SCOTUS have to find 2A as "fundamental right" first before affirming that it is incorporated to the states? If they ruled it was not a fundamental right, then it would not be subject to strict scrutiny, which would mean that it probably would not be incorporated to the states.
I'm just a layman, so any analysis of this scenario is appreciated....
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Just a note on the 4473 forms. Some of them are centralized. It is my understanding that when a dealer goes out of business the records are turned over to ATF. I have heard, but don't recall where for verification, that ATF had truck trailers full of forms and records from out of business dealers. Supposedly during the Klinton years many of these records wher being computerized in searchble databases. The rational given to be able to legaly do this was that the records were not current dealers records and were not restricted from being centralized. This was possible one of the reasons in the push to reduce the number of dealers.
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For years in Michigan a permit to purchase hand guns was required before purchase along with a "safety" inspection which was done at the local law enforcement agency after purchase. The "safety" inspection was defacto registration. The law changed this year and it is now dejuro (by law) registration. With the law change the mechanics of purchasing a handgun became a little easier as you no longer are required to return to the local police for the "safety" inspection, but just turn in the completed purchase forms. If you have a CPL (Concealed Pistol License) that is your permit to purchase and you don't have to obtain a purchase permit beforehand.
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In your opinion, would SCOTUS have to find 2A as "fundamental right" first before affirming that it is incorporated to the states? If they ruled it was not a fundamental right, then it would not be subject to strict scrutiny, which would mean that it probably would not be incorporated to the states.
I'm just a layman, so any analysis of this scenario is appreciated....
Fullauto
What we have in re. the Bill of Rights is called "selective incorporation plus". Bottom line is this. In 1805 the Court held that the Bill of Rights applied to the feds not the states due to dual soveirenty. This started to change in the twenties with certain parts of the Bill of Rights being applied to the states under the equal protection clause of the 14th Ammendment, plus other "fundamental"rights such as the right to privacy. Where we now stand is that all of the Bill of Rights except the 2A and the 8A's prohibition on excessive fines and bail have been applied to the states as they are deemed "fundamental". This is the magic word. Get this magic word, and the "shall not be infringed" wording hits Mass. as well as the feds. Heller is nationalized.
A fundamental right is subject to "strict scrutiny". Two other magic words. What they mean is that the burden of proof falls on the state to show that a law does not infringe a "fundamental" right, rather than you having to prove that it is an infringement. If however, the right is not incorporated and thus "fundamental", all the the state needs to to do is meet the "rational basis" test. This means that the law was non-discriminatory, within the power of the body passing it and served a legitimate public interest. The burden of proof is on you to prove its unconstitutional. This is the Cliff notes version but I hope it helped.
FQ13
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Fullauto
What we have in re. the Bill of Rights is called "selective incorporation plus". Bottom line is this. In 1805 the Court held that the Bill of Rights applied to the feds not the states due to dual soveirenty. This started to change in the twenties with certain parts of the Bill of Rights being applied to the states under the equal protection clause of the 14th Ammendment, plus other "fundamental"rights such as the right to privacy. Where we now stand is that all of the Bill of Rights except the 2A and the 8A's prohibition on excessive fines and bail have been applied to the states as they are deemed "fundamental". This is the magic word. Get this magic word, and the "shall not be infringed" wording hits Mass. as well as the feds. Heller is nationalized.
A fundamental right is subject to "strict scrutiny". Two other magic words. What they mean is that the burden of proof falls on the state to show that a law does not infringe a "fundamental" right, rather than you having to prove that it is an infringement. If however, the right is not incorporated and thus "fundamental", all the the state needs to to do is meet the "rational basis" test. This means that the law was non-discriminatory, within the power of the body passing it and served a legitimate public interest. The burden of proof is on you to prove its unconstitutional. This is the Cliff notes version but I hope it helped.
FQ13
Mucho gracias!!
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Agreed, but understand that your guns already are registered with the 443. Unless you got them by inheiritance or a private sale there is a record, its just a question of how many hoops the cops have jump through to get it. Personally, I believe that if you think the instant background check records really are destroyed without a "back up" being stored you're a sucker. I don't care what the law says, I think ATF has "destroy those records" right below "wash the cat" on their to do list.
FQ13
Even if you got it through Private sale or inheritance the the gun itself, if manufactured after 1968 is registered with the Federal Govt, they know when and where it was made, and they know at least ONE dealer who sold it.
I did read somewhere though that the instant check honestly does not keep any records, Some one called Tom Gresham with a story that during the call the DEALER misspelled the guys name when they called back minutes later they could not correct it because there was no record.
In your opinion, would SCOTUS have to find 2A as "fundamental right" first before affirming that it is incorporated to the states? If they ruled it was not a fundamental right, then it would not be subject to strict scrutiny, which would mean that it probably would not be incorporated to the states.
I'm just a layman, so any analysis of this scenario is appreciated....
The way I understand it the in the Heller Case the SCOTUS ruled that the 2A is binding on the FEDERAL govt. (The City of DC is administered directly by Congress not a State legislature. ) Obama CAN'T take all our guns.
A further lawsuit needs to be argued against a STATE for the 2A to be incorporated by SCOTUS ruling that the STATE can't take all our guns either. Then there have to be fights over weather or not they can take particular TYPES of guns.
As to the "DUAL SOVEREIGNTY" thing that FQ is talking about, you are on much better ground if you Federal 2A rights are reiterated in your State Constitution, We could wind up with "Gun states" and Gun Free" States.
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Registration should NOT be legal!
and I know what happens after registration ;)
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and I know what happens after registration ;)
Yeah! Scary, ain't it!
I of course, know about the 4473 and such but mandatory LOCAL or national is BS!
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Yeah! Scary, ain't it!
I of course, know about the 4473 and such but mandatory LOCAL or national is BS!
Which is why the GCA 68 and NFA need to be overturned.
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Which is why the GCA 68 and NFA need to be overturned.
The only good thing about the GCA 68 is the no guns through the mail part. I do like the idea of an instant background check without records kept, to keep guns out of the hands of felons. You shouldn't be able buy a piece on your way home from jail. Beyond this its all BS.
FQ13
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The only good thing about the GCA 68 is the no guns through the mail part. I do like the idea of an instant background check without records kept, to keep guns out of the hands of felons. You shouldn't be able buy a piece on your way home from jail. Beyond this its all BS.
FQ13
When John Wesley Hardin was released from prison for murder they returned his pistols with the rest of his PROPERTY.
Who has weapons, How they were delivered, how they are set up, or the owners past history are, in truth, irrelevant. The ONLY thing that is relevant, which can never be controlled by any law, is how they are used in the future. Hardin became a lawyer, never had another gun fight, and died of illness.
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I'll just go on record as saying that this is pure BS ... But, I think most of you already understood that.
What purpose does registration serve beyond imposing a tax to posess or a record of who to contact for a round up?
I would also like to get a fair answer to how much gun violence declined when background checks were imposed, and the ability to purchase through catalogs, etc went out the window. I believe that if we dug into the numbers we would find that all the limitations on our Rights have not done a single thing to change reality.
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I'll just go on record as saying that this is pure BS ... But, I think most of you already understood that.
What purpose does registration serve beyond imposing a tax to posess or a record of who to contact for a round up?
I would also like to get a fair answer to how much gun violence declined when background checks were imposed, and the ability to purchase through catalogs, etc went out the window. I believe that if we dug into the numbers we would find that all the limitations on our Rights have not done a single thing to change reality.
It had no effect, Violent crime rises or falls based on cultural and economic trends.
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I would also like to get a fair answer to how much gun violence declined when background checks were imposed, and the ability to purchase through catalogs, etc went out the window. I believe that if we dug into the numbers we would find that all the limitations on our Rights have not done a single thing to change reality.
Here we are in agreement. I hate arguing ideology when facts would solve the problem. We all pro and anti alike think that guns should be kept from criminals. Where we disagree and always will disagree, is whether law abiding folks have that right. The Constitution is on our side, we win, they lose if Heller is nationalized. Proceeding from there, if we take "shall not be infringed" seriously; the question under "strict scrutinty" becomes what is the least restrictive means available to keep felons from buying guns? Do instant background checks work or are they a waste of money? Empirical data would go a long way here to guiding policy.
FQ13
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Here we are in agreement. I hate arguing ideology when facts would solve the problem. We all pro and anti alike think that guns should be kept from criminals. Where we disagree and always will disagree, is whether law abiding folks have that right. The Constitution is on our side, we win, they lose if Heller is nationalized. Proceeding from there, if we take "shall not be infringed" seriously; the question under "strict scrutinty" becomes what is the least restrictive means available to keep felons from buying guns? Do instant background checks work or are they a waste of money? Empirical data would go a long way here to guiding policy.
FQ13
Agreed. But that would require facts and common sense.
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Here we are in agreement. I hate arguing ideology when facts would solve the problem. We all pro and anti alike think that guns should be kept from criminals. Where we disagree and always will disagree, is whether law abiding folks have that right. The Constitution is on our side, we win, they lose if Heller is nationalized. Proceeding from there, if we take "shall not be infringed" seriously; the question under "strict scrutinty" becomes what is the least restrictive means available to keep felons from buying guns? Do instant background checks work or are they a waste of money? Empirical data would go a long way here to guiding policy.
FQ13
Not exactly FQ, I've known to many dopers over the years to believe the myth that you can keep ANY thing away from criminals.
If it is a battle that can not possibly be won then why waste the time, money and effort to lose when by making sure that good people have the will, ability, and equipment to thwart criminals you can direct your resources to out flanking the problem.
What would be the effect on crime if we passed ANOTHER law barring criminals from possessing weapons ?
What would the effect be if the criminals chances of being shot increased by 30% ?
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Tom, John Wesley Hardin was shot and killed.
From Wikipedia:
http://en.wikipedia.org/wiki/John_Wesley_Hardin
El Paso lawman John Selman, Jr., arrested Hardin's friend, the widow M'Rose (also spelled Mroz), for "brandishing a gun in public." Hardin confronted Selman, and the two men had a verbal dispute. On being told of the argument, John's 58 year old father John Selman, Sr., who was a constable, approached Hardin on the afternoon of August 19, 1895 and the two men exchanged words. Later that night, Hardin went to the Acme Saloon, where he began playing dice. Shortly before midnight Selman walked in and saw Hardin with his back to him, and shot him in the back of the head, killing him instantly. As Hardin's body lay on the floor, Selman fired three more shots into him. Selman was arrested for the murder and stood trial where he claimed he had fired in self defense. A hung jury resulted in his being released on bond. However, Selman was killed in a shootout on April 6, 1896 by US Marshal George Scarborough. Selman and Scarborough had been playing cards and got into an argument. Both exited to the alley and shot it out, after which Scarborough returned alone. Scarborough was arrested for murder as no gun was found on Selman. However, just before his trial a thief was arrested and it was discovered he had Selman's gun. He stated he had seen the shooting and stolen the gun before the crowd arrived. Scarborough was then released.
On April 5, 1900, four years after he shot John Selman, Scarborough was mortally wounded in a gunfight with two robbers
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It doesn't change my point, though I will say that a bullet in the back of the head sounds like a serious medical condition to ME. ;D
Found some more details
http://www.famoustexans.com/johnwesleyhardin.htm
In 1895, Hardin went to El Paso to testify for the defense in a murder trial. Following the trial, he stayed and established a law practice. Just when he seemed to finally be going straight, Hardin began an affair with one of his married female clients. Her husband found out about the affair and Hardin hired some law officials to kill him. One of the hired gunmen, however, Constable John Selman, shot Hardin instead.
Legend has it that his last words were, "Four sixes to beat, Henry." When killed, Hardin was shooting dice with local furniture dealer Henry Brown at the Acme saloon in El Paso.