imported post
dngreer wrote:
...
When I read the second amendment, I understand it to prove that all these gun laws restricting our freedoms are illegal. I defined a couple of key words in the second amendment, and it makes it even more clear to me.
...
I understand that to mean I am promised the right to carry how, when, where, and what I want.
...and am I interpreting our constitution incorrectly? I am curious to see how this line of reasoning would hold up in a court of law.
You have the Right to Keep and Bear Arms, and this right pre-existed the 2nd Amendment, which offered explicit enumeration and further protection for the existing right -- making it clear that this is a fundamental and necessary individual right for the people of any free state (i.e., free country.)
However, restrictions on a right are permissible under the Constitution in certain very limited cases, mostly after DUE PROCESS when such serve as punishment (which is not cruel or unusual). Convicted felon may legitimately lose property (fines and forfeiture), freedom (be incarcerated), other rights (voting and RKBA), or even life for the most serious crimes (murder, treason, etc.)
All other infringements, i.e., those not involving due process for actual bad behavior. applied to citizens in general must pass "Strict Scrutiny"
*.
One of the rules of constitutional law is that any law (whether a statute, regulation or town ordinance) impacting a fundamental right is subject to strict scrutiny. Under strict scrutiny, a judge must presume that the law in question is invalid, and a court will uphold the law only if it is found it be narrowly tailored to further a compelling government interest. Laws that are subject to strict scrutiny frequently are struck down as unconstitutional.
None of the CDC, the National Academy of Sciences, nor DoJ was able to find that ANY gun control reduces VIOLENT CRIME, SUICIDE or ACCIDENTS in any significant manner.**
Therefore since no current "gun control" (including Brady/NICS) has been (or can be) shown to serve a compelling state interest (nor have any positive effect in fact) these laws cannot pass scrict scrutiny and are unconstitutional.
Surprising even to many RKBA activists is the that even asking for ID under Brady/NICS*** background check are an egregious violation of the Constitution no matter how much this SEEMS like "common sense." The Brady/NICS law has not been shown to prevent any of murder, violent crime, suicide, nor accidents and is in fact not even enforced on felons.
The lack of compelling state interest is also demonstrated clearly by the simple fact that less than 100 criminals are prosecuted each year for Brady/NICS violations -- and the vast majority of these are because the authorities needed to arrest or prosecute a criminal but can't make the real charge stick, or as a "predicate felony" for a conspiracy or RICO charge.
This doesn't mean you will win in a particular court but it does show clearly that all current gun laws are in fact egregious violations of the Constitution. And most states Constitutions would agree, since some 44 State Constitutions explicitly protect the RKBA (more than protect freedom of religion explictly) and 40 states offer essentially "Shall Issue" Concealed carry.
But notice that most state laws on Concealed Carry (except Alaska and Vermont) are also unconstituniol in requiring a license to exercise a right, especially and specifically without that process being able to pass Strict Scrutiny.
These laws also cannot pass strict strutiny on the grounds that there are other methods available which are less intrusive and less pervasive in affecting a fundamental right.
Were the desired effects of such laws such as NICS/Brady to be made constitutional might be possible if the burden was shifted to convicted felons -- by removing 4th Amendment rights from ONLY those who after due process had also lost their RKBA (2nd Amendment guaranteed) rights.
That is, by allowing the police to search the person and property of a convicted felon without warrant or even additional propable cause -- as much as this sounds like a violation of rights it is certainly no more egregious than incarceration or the continued loss of the RKBA and shifts the burden to those who have been afforded due process for their own actions.
*For there to be a compelling state interest, there must be:
1. A major problem;
2. Clear and direct proof the proposed restriction would significantly reduce
that problem; AND
3. any restriction must be NARROWLY tailored, in general this means the
smallest possible restriction of rights and that the restriction must not
apply to the law-abiding due to bad behavior of others, i.e., without due
process; AND
4. clear evidence that no other method is available and that no restriction
that was less burdensome on the populace would be effective.
More here:
http://www.answers.com/topic/strict-scrutiny
**Don B. Kates and Gary A. Mauser, "Would Banning Firearms Reduce Murder and Suicide? A Review of International Evidence" (June 6, 2006). ExpressO Preprint Series. Working Paper 1413.
http://law.bepress.com/expresso/eps/1413
http://law.bepress.com/cgi/viewcontent.cgi?article=6426&context=expresso
<<In this connection two recent studies are pertinent. In 2004 the U.S. National Academy of
Sciences released its evaluation from an review of 253 journal articles, 99 books, 43 government
publications and some empirical research of its own. It could not identify any gun control that had
reduced violent crime, suicide or gun accidents.(15) The same conclusion was reached in a 2003
study by the U.S. Centers for Disease Control’s review of then-extant studies"(16)
(15) Charles F. Wellford, John V. Pepper, and Carol V. Petrie (eds.),
FIREARMS AND VIOLENCE: A CRITICAL REVIEW
(National Academy of Sciences, 2004). It is perhaps not amiss to note that the review panel,
which was set up during the Clinton Administration, was almost entirely composed of scholars who, to the extent
their views were publicly known before their appointments, favored gun control.
(16) “First Reports Evaluating the Effectiveness of Strategies for Preventing Violence: Firearms Laws” (CDC,
2003) <
http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5214a2.htm>
>>
*** Review of the ATF’s Enforcement of Brady Act Violations Identified Through the National Instant Criminal Background Check System
Office of Inspector General's (OIG) Draft Report: Review of the Bureau of Alcohol, Tobacco, Firearms and Explosives' Enforcement of Brady Act Violations Identified through the National Instant Criminal Background Check System. A-2004-001
http://www.usdoj.gov/oig/reports/ATF/e0406/final.pdf
<<
A June 28, 2001, memorandum from the Attorney General directed
the U.S. Attorneys to “make it a priority to enforce the law against those
persons who attempt to subvert the legitimate crime prevention objectives of
the Brady Act and to incorporate this new focus into [their] comprehensive
prosecutive efforts.” During CYs 2002 and 2003, approximately 120,000
cases were referred by the FBI to the Brady Operations Branch. Of these
cases, the ATF formally referred only 230 to the USAOs, and the USAOs
accepted 185, or 80 percent for prosecution.3 Of these cases, 154 were
prosecuted.
We believe that the number of referrals and prosecutions is low
because of the difficulty in obtaining convictions in NICS cases. These cases
lack “jury appeal” for various reasons. The factors prohibiting someone
from possessing a firearm may have been nonviolent or committed many
years ago. The basis for the prohibition may have been noncriminal (e.g., a
dishonorable discharge from the U.S. military). It is also difficult to prove
that the prohibited person was aware of the prohibition and intentionally
lied to the FFL. We were also told that in parts of the United States where
hunting historically has been part of the regional culture, juries are
reluctant to convict a person who attempted to purchase a hunting rifle.
>>
Why the ATF says the recommendations won't work, blah blah blah
http://www.usdoj.gov/oig/reports/ATF/e0406/app4.htm
****What State Constitutions Teach About the Second Amendment by David B. Kopel
"44 State Constitutions explicitly protect the Right to Keep and Bears Arms
as an individual one. (And has been so held by all but one of them in the
Courts)"
http://www.davekopel.com/2A/LawRev/WhatStateConstitutionsTeach.htm
"It is well-settled that state constitutions can serve as an aid to interpreting the
federal Bill of Rights. ....
The rights of free exercise of religion and of freedom from religious discrimination are
protected by only 34 state constitutions. See Jennifer Friesen,
State Constitutional Law: Litigating Individual Rights"
State Constitutional Right to Keep and Bear Arms Provisions
Prof. Eugene Volokh, UCLA Law School *
http://www.law.ucla.edu/volokh/beararms/statecon.htm
Even New Jersey courts for goodness sakes.
http://www.washingtonceasefire.com/content/view/52/35/
New Jersey Court Recognizes 2nd Amendment and Holds that it Trumps Gun Forfeiture Law Belvidere, N.J, March 19, 2007 — In a landmark written opinion filed February 27, a New Jersey Superior Court recognized the Second Amendment of the U.S. Constitution and held that a citizen’s Constitutional Right to Keep and Bear Arms cannot be involuntarily waived under a New Jersey firearms forfeiture law.
http://www.law.ucla.edu/volokh/2amteach/sources.htm