Is Licensing or Registration "reasonable" under Heller and McDonald?

Ugh, that cumbersome "first post" column width again!

See next post!

TFred

In much of the media coverage of McDonald, I see that most of the anti-gun crowd is taking quite a bit of comfort in claiming that the court left intact "reasonable restrictions". Perhaps understandably so, that thin liner is about all that's left of their warm feel-good "blanket of gun-control".

The use of the phrase "reasonable restrictions" to describe the post-McDonald, and still over-the-top onerous gun regulations, was upsetting my stomach. Enough to inspire me to take a closer look at just what Heller and McDonald actually did say about reasonable restrictions.

I don't claim this is a full analysis, and IANAL, but here's the low hanging fruit... please feel free to chime in with deeper analysis as appropriate.

I think these anti-gun folks are putting way too much faith in the Heller/McDonald reasonable restriction position. Those in support of the new registration procedures and even the requirement to keep your gun in your home at all times are falling all over themselves to cite the opinions' position that reasonable restrictions were acknowledged to be valid.

But just what did they say?

From Heller, pp 54-55 of the Court's opinion (written by Scalia), we have:

At the end of the Syllabus of Heller (the Syllabus is provided for only some opinions as a helpful summary of the opinion, but is not included as a part of the opinion), the writer states:


Then in McDonald, the same section of Heller is referenced, again in the Opinion of the Court (by Alito) pp 39-40:


So that's what they actually said... what does it mean? According to the Syllabus of Heller, they specifically did not address any licensing issue. The only thing that comes remotely close is to include a reference to "laws imposing conditions and qualifications on the commercial sale of arms", which is certainly not a clear reference to any sort of licensing and especially not to any registration scheme (I would suggest that registration is farther removed from purchase than licensing, and especially when they specifically say "commercial sales" and do not mention "private sales"), and even more so not when the clearly stated purpose of such schemes is to make it as hard as legally possible for citizens to legally acquire a gun!

It appears that there are already lawsuits under way to oppose these new registration schemes. I really don't see any precedent, even with Heller and McDonald acceding to not "cast doubt on longstanding prohibitions..." for any idea that registration or licensing for the sole purpose of making gun ownership and possession more difficult being acceptable under the Second Amendment.

Thoughts?

TFred

3 Bright Lines.....

TFred,

I think you are exactly right. Iview the 3 constitutional exceptions as 3 bright lines. If your infringement isn't one of these 3 exceptions, then it is an unconstitutional infringement upon a fundamental right.

Other believe that this is the "don't bother challenging these" list and everything else has to be reasonable regulation.

I really think any law that does not have one of these 3 exceptions as a nexus is unconstitutional under MacD.

We ought to be screaming this from the rooftops. There is at least one district attorney that feels this way, and I am sure there are many others. Remember if we do not rush into the void, the criminal scumbags will, and they are much less likely to get a favorable RKBA decision than a LAC.

Live free or Die,
Thundar

IANAL either, but I think that what will be found is that so long as the registration or licensing does not create an undue burden, it will be found to be legal. What this means is that its cost cannot be prohibitive, nor can the issue of licensing be arbitrary, if you can pass a background check, you will be issued a license. Nor can the time frame be excessive, six weeks to 90 days would pass the smell test; six months to a year is unreasonable. The days of licensing for "special people" are numbered. I also don't think there will be much change at all in gun friendly states. I don't see a big push for such schemes in localities that don't have them now. Such schemes pass the smell test of reasonable because the state has a compelling interest in keeping weapons out of the hands of criminals. (for all the good their interest does)

At the same time, I think there will be a tumbling of various bans, particularly of assault weapons, as both Heller and McDonald make plain that absolute bans are not legal. As well, with the incorporation of the 2nd, federal case law is now binding upon the states. This means that Miller, which was once touted by the anti's as the death nell of the 2nd, but which really says that weapons that are useful for militia purposes cannot be banned, is the law of the land. I'd like to see Paul Helmke and company argue that AR-15's, SKS's, AK's, Galil's, FN-FALs, etc have no militia usefulness. Arbitrary BS like flash hiders, bayonet lugs, pistol grips should be gone too. I would expect hi-cap magazine limitations to stand, so stock up on mag's.

More thinking...

It seems to me that passing a background check is indeed a defacto "license" to purchase. When information about that purchase is held, then it becomes a defacto "registration".

In Virginia, the federally required background check is initiated by the dealer and completed in a matter of minutes, or at worst a couple of days. The cost from the State Police is assessed to the dealer, who either directly or indirectly passes it along to the customer.

It seems to me that any more complicated, more costly scheme than that would be easy to show to be intended to inhibit.

Registration is another can of worms. If it is reasonable to ensure that felons do not possess guns, the antis will argue that registration is required to know when newly convicted felons have guns that need to be divested.

TFred

Not sure.

JohnH said:

IANAL either, but I think that what will be found is that so long as the registration or licensing does not create an undue burden, it will be found to be legal.

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I disagree. All laws must pass muster on a much higher level than before. 'Does not create an undue burden' isn't relevant. There must be a clear and demonstrated significant benefit, right? Nobody can prove registration is useful, proof being those cities and countries that tried it and failed miserably. It's nothing but a money pit.
IANAL either, so yous gets what chas pays for.

TFred said:

More thinking...

Registration is another can of worms. If it is reasonable to ensure that felons do not possess guns, the antis will argue that registration is required to know when newly convicted felons have guns that need to be divested.

TFred

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I agree they will make this argument. I don't see any merit, because it assumes guilt beforehand. Anytime the gov't asks us to do something because we might, at some future date, break a law is overstepping it's bounds.

When things finally shake out, assuming that the Court doesn't go completely Marxist, no ownership regulation will be permitted that's more burdensome than the typical "shall issue" CCW requirement.

When I was growing up in Chicago in the '60s and '70s, Chicago's gun laws were certainly more burdensome than Ohio's current laws, but compared to NYC, it was like living in the Tribal Territories of Pakistan. You got your IL FOID, bought whatever you wanted and registered it. All nondiscretionary.

That means that NYC's laws are living on borrowed time, and again, Daley will be the agent of destruction for somebody ELSE'S gun laws besides his own.

Keep it up mumbles, you're doing great... for US.

My biggest problem with this whole thing is that the SCOTUS is using CASE LAW to put forth their decisions. Where in the Constitution does it say to do that? We The People, must force this government to go back to the Constitution and forget using case law the way the Founders intended.

Justice Breyer, in his dissent...

Consider too that countless gun regulations of many shapes and sizes are in place in every State and in many local communities. Does the right to possess weapons for self-defense extend outside the home? To the car? To work? What sort of guns are necessary for self-defense?Handguns? Rifles? Semiautomatic weapons? When is a
gun semi-automatic? Where are different kinds of weap-ons likely needed? Does time-of-day matter? Does the presence of a child in the house matter? Does the pres-ence of a convicted felon in the house matter? Do police need special rules permitting pat downs designed to find guns? When do registration requirements become severe to the point that they amount to an unconstitutional ban?Who can possess guns and of what kind? Aliens? Prior drug offenders? Prior alcohol abusers? How would the right interact with a state or local government’s ability to take special measures during, say, national security emer-gencies? As the questions suggest, state and local gun regulation can become highly complex, and these “are only a few uncertainties that quickly come to mind.” Caperton
v. A. T. Massey Coal Co., 556 U. S. ___, ___ (2009) (ROB-ERTS, C. J., dissenting) (slip op., at 10).

KansasMustang said:

My biggest problem with this whole thing is that the SCOTUS is using CASE LAW to put forth their decisions. Where in the Constitution does it say to do that? We The People, must force this government to go back to the Constitution and forget using case law the way the Founders intended.

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Four words to research:
Common law
Stare Decisis

Tawnos said:

Four words to research:
Common law
Stare Decisis

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And again, just me being stupid. Exactly where do I find that in the Constitution? Maybe I'm just not following close enough. Bu I have yet to read that anywhere.
"The United States federal government (as opposed to the states) only partially has a common law system. United States federal courts only act as interpreters of statutes and the constitution by elaborating and precisely defining the broad language (connotation 1(b) above), but, unlike state courts, do not act as an "independent source of common law"
Other courts, for example, the Court of Customs and Patent Appeals and the Supreme Court, always sit en banc, and thus the later decision controls. These courts essentially overrule all previous cases in each new case, and older cases survive only to the extent they do not conflict with newer cases. The interpretations of these courts - for example, Supreme Court interpretations of the constitution or federal statutes - are stable only so long as the older interpretation maintains the support of a majority of the court. The majority may persist through some combination of belief that the old decision is right, and that it is not sufficiently wrong to be overruled."

KansasMustang said:

And again, just me being stupid. Exactly where do I find that in the Constitution? Maybe I'm just not following close enough. Bu I have yet to read that anywhere.
"The United States federal government (as opposed to the states) only partially has a common law system. United States federal courts only act as interpreters of statutes and the constitution by elaborating and precisely defining the broad language (connotation 1(b) above), but, unlike state courts, do not act as an "independent source of common law"
Other courts, for example, the Court of Customs and Patent Appeals and the Supreme Court, always sit en banc, and thus the later decision controls. These courts essentially overrule all previous cases in each new case, and older cases survive only to the extent they do not conflict with newer cases. The interpretations of these courts - for example, Supreme Court interpretations of the constitution or federal statutes - are stable only so long as the older interpretation maintains the support of a majority of the court. The majority may persist through some combination of belief that the old decision is right, and that it is not sufficiently wrong to be overruled."

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When the judicial system in the US was created with the Constitution, the concept of "courts" carried with it the ideas of stare decisis and and common law. Stare decisis helps avoid courts answering the same question repeatedly, but does not prevent going against stare decisis if a previous ruling was decided wrongly. McDonald, to some extent, went against stare decisis. Common law is a recognition that not all law is enacted by legislatures or handed down from courts. Some law pre-exists both, but has been recognized by the courts. These ideas, as long as they don't violate the Constitution, are valid and have been used throughout the history of the US court system.

I've been thinking about the post-McDonald world a lot, also.

In the short run (the next few years), I expect not much will change for most states. I do expect drastic changes for places like NY, CA, NJ, IL, etc. I expect those states to be forced to acknowledge the Rigth to BEAR arms. Initially, I expect those states to have 'shall issue' concealed weapons permits or license to carry handguns. This in itself will be a giant step for these states.

In the longer term, I expect licensing of openly carried weapons and gun registration to be ruled an undue regulation of that right.

Based on case law and numerous state constitutions, I expect concealed carry to always be open to restriction or licensing, if the state wishes to. I do think that OPEN CARRY will be ruled to be nationally permissable and subject to bare minimum restrictions (explicitly stated by the SCOTUS). Since the RTKBA (always understood as open carry) is a fundamental right, I expect (after years of lawsuits) a person will be able to strap on a gun in CA and travel to NY, stopping as he pleases in between, without being accosted.

The phrase "reasonable restrictions" is just the anti's new version of "keeping guns out of the hands of the wrong kinds of people". It is "code" for "not letting poor, black, brown, or politically incorrect people have guns".

They've realized that the pro-2A world (and a growing segment of the minority community and civil rights activist community) has figured out who they REALLY mean when they say "the wrong kinds of people", and they've just changed the wording of their racist and classist ideology in an attempt to further confuse the public and mask their true intent.

Anyone who uses this term needs to be publicly "outed" as the racist and classist elitist that they are...

"Reasonable Restriction" is simply 21st Century Jim Crow.

Hear hear!

Dreamer said:

The phrase "reasonable restrictions" is just the anti's new version of "keeping guns out of the hands of the wrong kinds of people". It is "code" for "not letting poor, black, brown, or politically incorrect people have guns".

They've realized that the pro-2A world (and a growing segment of the minority community and civil rights activist community) has figured out who they REALLY mean when they say "the wrong kinds of people", and they've just changed the wording of their racist and classist ideology in an attempt to further confuse the public and mask their true intent.

Anyone who uses this term needs to be publicly "outed" as the racist and classist elitist that they are...

"Reasonable Restriction" is simply 21st Century Jim Crow.

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I concur.

Doug Huffman said:

How would the right interact with a state or local government’s ability totake special measures during, say, national security emergencies?

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As Doug quoted from Justice Breyer's dissent of McDonald (pp. 12-13).

This has got to be one of the scariest statements ever made by a Supreme Court justice. This flies in the face of the very purpose of the Second Amendment. Apparently Justice Breyer isn't so sure that police confiscating guns during Katrina was necessarily a bad idea. OR any other future, possibly contrived "national emergency" designed to quell the subjects.....

How could anyone who calls themselves an American utter these words? :cuss:

And more important to today, how could anyone who calls themselves an American vote to confirm the next justice that undoubtedly has this same view?

TFred

I think the permits to carry will be found unconstitutional. It is too much money, time, and even "shall issue" States can take the permit w/o hearings, for misdemeanor charges, or even failure to pay child support. When the Second Amendment was written there was no requirement for background checks. They may rule that permits are okay to regulate carry in sensitive areas like schools, arenas, courts, etc. If one judge sides with the disent, "reasonable restrictions" can mean whatever he wants it to.

TFred said:

As Doug quoted from Justice Breyer's dissent of McDonald (pp. 12-13).

This has got to be one of the scariest statements ever made by a Supreme Court justice. This flies in the face of the very purpose of the Second Amendment. Apparently Justice Breyer isn't so sure that police confiscating guns during Katrina was necessarily a bad idea. OR any other future, possibly contrived "national emergency" designed to quell the subjects.....

How could anyone who calls themselves an American utter these words? :cuss:

And more important to today, how could anyone who calls themselves an American vote to confirm the next justice that undoubtedly has this same view?

TFred

Click to expand...

Interesting, your link is to the Heller decision, not the McDonald decision. It was refreshing to go back and re-read what the court held in that decision, I'd not done that in over a year now. This is what is most interesting...

From Pg. 3 ... Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfyhis prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home...

The language here, "licensing law is permissable if it is not enforced arbitrarily and caprriously" will be the words the anti's hang on. Never mind that the court says that because Heller conceded that point, they didn't address the issue. At the time of the Heler decision, there were a lot of people upset and lots of bandwidth was spent discussing this and what the future might bring.

Licensing for concealed carry has been the practice for over 100 years now. That ain't going to go away. The right is not unlimitied. Neither are the rights of free speech or religion. No one argues that painting swazticas on synagoges or human sacrifice are protected acts. The point being that all rights have limitations.

What will come is that places like NY and CA which have had long standing licensing schemes which have been used mainly to keep people from having firearms will be forced to to simplify the application process and make it readily accessible. 5 trips to an office across the state won't cut it, and no more denials because a person doen't fit some unspoken "special one's" definition. At this point, most of this will be sorted out at the state level. A few cases will rise to a federal district court, but mostly those for states like NY and CA.

McDonald has definately changed the landscape.

eye95 said:

When the judicial system in the US was created with the Constitution, the concept of "courts" carried with it the ideas of stare decisis and and common law. Stare decisis helps avoid courts answering the same question repeatedly, but does not prevent going against stare decisis if a previous ruling was decided wrongly. McDonald, to some extent, went against stare decisis. Common law is a recognition that not all law is enacted by legislatures or handed down from courts. Some law pre-exists both, but has been recognized by the courts. These ideas, as long as they don't violate the Constitution, are valid and have been used throughout the history of the US court system.

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I see,,well slap me and call me stupid