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Do 18 year olds have a constitutional right to buy a handgun from a Federal dealer? Not according to Congress. (NRA v. BATFE) To carry a handgun in public? Not according to the Texas legislature. (NRA v. McCraw)

Those are pointed questions and they present precise targets. But not to the NRA ...

In challenging these, the NRA is aiming not just at the ATF, or at Texas law, or even at the Fifth Circuit Court of Appeals that decided against it in both cases. Its target is all Federal courts who, it declares, are "engaged in massive judicial resistance to implementing this Court’s Second Amendment decisions...." And, "This case [BATFE] presents a prime example of this de facto rejection of Heller and McDonald by lower courts."

Strong rhetoric like that is like taking shots with this:

An 18th century flintlock blunderbuss. For use at close range.
Load with powder and half a pint of nails, glass or coarse shot.

Will the NRA hit its target? Duck down below the fragmented bulls-eye.

Disclaimer. What follows is general information on a law topic. Nothing in this diary constitutes legal advice and it is not to be acted on as legal advice. Criminal law and procedure is a law practice specialty. If you need advice, get it from a skilled professional.
It is easy to understand why NRA chose these cases to try to expand Second Amendment rights. BATFE would extend the Who of Heller’s right to self-defense to 18-20 year olds. McCraw would broaden the Where to public carry which in many states, does not extend to 18-20 year olds. Moreover, if the NRA won, public carry would be elevated to a constitutional right for every eligible gun owner, 18 and older, everywhere.

However, the issues are not quite that straightforward. Eighteen year olds can buy rifles and shotguns from Federally licensed dealers ("FFLs"), they can buy handguns in private deals, their parents can give them guns and 21 year old friends can buy guns for them. As for carrying a gun in public (openly, concealed or both), the law in every state in the nation allows it with variations … but in about two-thirds of the states, not by persons under the age of 21.

Nevertheless, the NRA views Heller and McDonald in absolute terms. It sees them as constitutional commandments that should void restrictive Federal and state firearms laws. At the outset, then, we need to know what these cases decided.

Heller and McDonald :  The Beginning of … What, Exactly?



These are seminal gun rights cases - in the sense of being major turning points - since the Bill of Rights became effective in 1791.

D.C. v. Heller (2008) held that the Second Amendment contained a constitutional right to have an operable handgun for self-defense in one's home. It reversed the DC council's legislation, then the strictest ban in the nation. McDonald v. City of Chicago (2010) was a case from Chicago and its adjacent suburb of Oak Park, with the next strictest gun bans. The Heller decision's right of self-defense applied only to DC and Federal jurisdictions. McDonald applied it to states and cities.

In Heller (2008), Justice Scalia, writing for a five-justice majority, declared:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. ... Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Footnote 26: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

[citations omitted; italics added for emphasis]

In McDonald, Justice Alito repeated Scalia’s language and took pains to reiterate that:
Despite municipal respondents’ doomsday proclamations, incorporation [through the 14th Amendment] does not imperil every law regulating firearms.
Sidebar. As occurs in a few Supreme Court cases, McDonald was a majority decision (5-4) but J. Alito's lead opinion was for only a plurality, four of the nine justices. This was because J. Thomas disagreed (and J. Scalia had reservations) on which theory the Court should employ to "incorporate" its Heller self-defense holding to the states through the 14th Amendment. That is a mini-law course for another diary. I've bitten off enough to chew already.

SCOTUS is now on break until February 21. If it accepts either or both of the NRA cases - with the time it takes the parties to prepare briefs and the Court to hear oral arguments, decide the case(s) and write opinions - it is likely more than six years will have elapsed since Heller.

It is clear to me that the Court has been giving legislatures, state courts and lower Federal courts time to work out for themselves Heller’s implications and consequences. SCOTUS explicitly chose not to pronounce upon these when it decided the Heller case. It is clear the NRA thinks the Court has taken too long.

NRA v.BATFE :  Sec. 922 (b)(1)



In the Gun Control Act of 1968 (Sec. 922(b)(1)), Congress prohibited commercial sales of handguns by FFLs to those under the age of 21:
(b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver —
(1) any firearm or ammunition ... if the firearm, or ammunition is other than a shotgun or rifle, or ammunition for a shotgun or rifle, to any individual who the licensee knows or has reasonable cause to believe is less than twenty-one years of age; ...
The section was narrowly crafted, the result of political compromises. The government argues practicalities - Congress regarded commercial handgun sales as the core problem it could resolve within the Federal system of gun dealing. The NRA, on the other hand, doesn’t take political compromise for an answer. With so many other ways for minors to get guns, the NRA labeled the FFL handgun prohibition "well-nigh irrational."

The Fifth Circuit Court of Appeals reviewed the history of keeping 18-20 year olds from buying guns. It held that policy "... is consistent with a long-standing tradition of age- and safety-based restrictions on the ability to access arms" from "founding-era thinking," through 19th century legislators and courts and up to current times. A 1999 report by the U.S. Treasury and DOJ found that in 1997, 18, 19 and 20 year olds ranked first, second, and third in the number of gun homicides committed.

Quoting Heller, the Fifth Circuit observed that the core of the Second Amendment protects “law-abiding, responsible” citizens. "Congress found that persons under 21 tend to be relatively irresponsible and can be prone to violent crime, especially when they have easy access to handguns."

Sidebar. Remember the issue Heller did not settle and the justices in McDonald justices split over - the "level of scrutiny" courts should employ to determine whether a state or Federal law is constitutional?

How high the court sets that bar depends on how fundamental the constitutional right is and what governmental interest is at stake.

Simply stated, from an easy standard to the most rigorous, the choices are:
(1)    Rational Basis: Is there a rational basis to achieve a proper government purpose?, or
(2)    Heightened/Intermediate Scrutiny: Is there a substantial relationship to the governmental purpose or objective? or
(3)    Strict scrutiny: Is the law narrowly tailored to achieve a compelling governmental purpose?

The standard a court selects will often determine the outcome of a case.

The Fifth Circuit pointed to footnote 26 of Scalia's opinion in Heller, that longstanding prohibitions on firearm possession by felons and the mentally ill, for example, are presumptively valid. To the Fifth Circuit, that meant Heller had endorsed "regulation of gun possession by classes of persons" and therefore, categories such as age do not involve a "fundamental" Second Amendment right. Therefore, strict scrutiny (the toughest standard) is not appropriate and an intermediate level of scrutiny is. The Fifth Circuit concluded that limiting access to handguns by 18-20 year olds did have a substantial relationship to an appropriate governmental objective.
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Another Sidebar. This level-of-scrutiny analysis is a semantic exercise. It grew over decades of cases in an attempt to impose a framework of logic on what is inherently subjective judgment. One scholar (Ted White on the UVA law faculty) has called this "a complex web" "intricate to the point of unintelligibility." Practitioners and law students, however, are stuck with this rubric.

The NRA's Petition for Certiorari argued that Second Amendment rights are fundamental, that the Fifth Circuit Court applied a very weak test of scrutiny and that it and similar decisions in two other Federal circuits are not "remotely consistent with this Court’s decisions in Heller and McDonald."

NRA v. McCraw:  Gun Carry in Public



The NRA carried on this theme in its appeal in McCraw. (Stephen C. McCraw is the Director of the Texas Department of Public Safety.) It argued:
This massive judicial resistance to implementing this Court’s Second Amendment decisions is particularly acute in challenges to laws restricting the right to carry a firearm in public. A number of courts have held that the right to keep and bear arms does not extend beyond the home, while others have subjected restrictions on that right to a form of intermediate scrutiny that is heightened in theory but toothless in fact. The practical result under both approaches is the same: the fundamental right to defend oneself with a firearm is effectively limited to the home, and this Court’s decisions in Heller and McDonald are effectively limited to their facts.
The NRA reads Heller broadly. To "keep" arms and to "bear arms" are different concepts, it reasoned. Does Heller mean only that you can "bear" arms from where you "keep" them in one room in your house to another room? It argued:
Heller explained that “[a]t the time of the founding, as now, to ‘bear’ meant to ‘carry,’ ” and “[w]hen used with ‘arms,’ . . . the term has a meaning that refers to carrying for a particular purpose – confrontation.”
The NRA acknowledged that Texas law does not prohibit public carry, although it puts conditions on carry permits dealing with handgun training and safety. Nevertheless, it devoted several pages to critiques of decisions in other circuits, underscoring its view that bearing arms is fundamental and any limitation calls for strict scrutiny. In its conclusion, the NRA deftly sidestepped other pending cases and urged that SCOTUS move its McCraw case ahead of others:
Several petitions for review are currently pending before this Court that involve challenges to state laws regulating the carrying of handguns in public. The present case has the comparative advantage of being free of any possible distractions or complications relating to a public official’s exercise of discretion in denying a handgun carry permit. Under the Texas laws challenged here, all law-abiding civilian adults aged 18 to 20 are categorically stripped of their Second Amendment right to bear handguns in public for self-defense. This case thus provides a pristine vehicle for addressing an important question that has divided the State and Federal appellate courts.
Critics will note that deciding for the NRA in "this pristine vehicle" would go way beyond the issue of 18-20 year olds and establish a fundamental Second Amendment right to carry in public, a constitutional mandate that would do away with discretionary "may issue" permitting in eight states that have more than 25% of the US population. Why? The Supreme Court explicitly limited Heller and McDonald to self-defense in the gun owner's home. If - as the NRA contends, there should be an absolute Second Amendment right for 18-20 year olds to carry in public (as contrasted with a right based on the statutory or case law of any given jurisdiction, which could be changed) - that necessarily means there is a constitutional right for every eligible gun owner to carry in public.
.

Observations



1. According to a tally by the Law Center to Prevent Gun Violence, SCOTUS has passed up the opportunity to review sixty Second Amendment cases since Heller. That is neither an accident nor neglect, the Center concludes:
By repeatedly declining to review lower court decisions upholding federal, state, and local gun laws, the Supreme Court has maintained important limitations on the Second Amendment and has reconfirmed that the Amendment is not an obstacle to smart gun laws that keep our communities safe from gun violence.
2. BATFE and McCraw are in the Petition stage. (Briefs on the merits won't be filed unless the Court grants review.) Review by the Supreme Court is by no means a slam dunk. However, Lyle Denniston, a reporter who writes extensively for SCOTUSblog, told me:
I think that these cases may have the best chance of a now-lengthening series of attempts to get the Court to spell out further what rights were conferred by the Heller decision. I think there is a fair chance of a grant [of certiorari, that is, a call to accept the case for appeal] in one or both of these.

3. The invective NRA is hurling at all the lower Federal courts might just as well be aimed directly at the Supreme Court. "May it please the Court" is the deferential opening sentence every lawyer gives before every court in every case. Compare that to the NRA's vehement criticisms of the courts in these two cases. There is no deference here; the Court is being hollered at.

4. A third case is pending, Lane v. Holder. The question presented is not the Second Amendment directly (although case papers were filed by Alan Gura, the attorney who successfully argued Heller and McDonald). It is whether out-of-state gun buyers have standing to challenge state and Federal laws that require interstate gun purchases to be consummated between dealers in the two states, not directly by the purchaser. The plaintiff, who lives in DC, bought two handguns in Virginia but before the transfer could be completed, the only FFL in DC dealer lost his lease. Gura is asking the court to merge his case with NRA v. BAFTE.

5. Resolving splits of authority among the Federal Circuit Courts of Appeal (the level between Federal trial courts and SCOTUS) is strong reason for SCOTUS to take a case for review. On the public carry question, Federal circuits are split. Three Circuits have now found no constitutional right to public carry. One has, the respected Seventh Circuit in Chicago. In Moore v. Madigan, Court of Appeals Judge Richard Posner emphasized the "bear arms" and confrontation argument points repeated by the NRA, in holding that the Second Amendment contained a right to carry arms for self defense in places outside the home. Judge Posner's opinion for the 2-1 majority, gave the Illinois legislature 180 days to craft appropriate legislation. (There was a strong dissent.)

A gun is a potential danger to more people if carried in public than just kept in the home. But the other side of this coin is that knowing that many law-abiding citizens are walking the streets armed may make criminals timid. Given that in Chicago, at least, most murders occur outside the home ... the net effect on crime rates in general and murder rates in particular of allowing the carriage of guns in public is uncertain both as a matter of theory and empirically.
(Two thoughts about that. I live in Chicago. Our criminals are not known to be "timid". And, the "net effect" of public carry being "uncertain" sounds like a strong reason for judicial deference to existing legislation, not judicial activism.)

Moore was not appealed to SCOTUS. (Perhaps not incidentally, the Madigan sued in the Moore case is Lisa, Illinois' Attorney General. Her father, Mike, has been Speaker of the Illinois House of Representatives for almost 30 years.) The Illinois legislature crafted a long permissive "must issue" carry statute. The changes this 168-page bill made in the historically restrictive gun laws of Illinois and Chicago were so pervasive that it is being implemented only now, in January 2014.
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Note: I made minor edits after publication to correct grammar.
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The Daily Kos Firearms Law and Policy group studies actions for reducing firearm deaths and injuries in a manner that is consistent with the current Supreme Court interpretation of the Second Amendment. If you would like to write about firearms law please send us a Kosmail.

To see our list of original and republished diaries, go to the Firearms Law and Policy diary list. Click on the ♥ or the word "Follow" next to our group name to add our posts to your stream, and use the link next to the heart to send a message to the group if you have a question or would like to join.

We have adopted Wee Mama's and akadjian's guidance on communicating.  But most important, be kind, for everyone you meet is fighting a battle.

Originally posted to Firearms Law and Policy on Sat Feb 01, 2014 at 04:32 PM PST.

Also republished by Shut Down the NRA and Repeal or Amend the Second Amendment (RASA).

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Comment Preferences

  •  This is interesting (5+ / 0-)

    Thanks Tom, for putting this together and putting it in perspective for us.

    Gura is asking the court to merge his case with NRA v. BAFTE.
    Why would he want to do do that? Are they trying to make the claims more compelling to the court?

    "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

    by LilithGardener on Sat Feb 01, 2014 at 05:07:43 PM PST

    •  Surely Gura regards this as a 2A case, but... (4+ / 0-)

      ... "standing" is a key threshold question. The NRA cases are moving vehicles, so to speak, and I don't think Lane is ready to present a set of full-fledged constitutional arguments despite the fact that Gura is a very experienced and proven advocate.

      And NRA has signaled it wants a "pristine" case.

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Sat Feb 01, 2014 at 05:26:57 PM PST

      [ Parent ]

      •  I should add, though, that Lane has been on ... (2+ / 0-)
        Recommended by:
        Glen The Plumber, LilithGardener

        ... the Court's calendar since early October. They were scheduled to take it up in conference but, five months later, have not announced any action.

        Such a delay is not unheard of, but Lane was first filed with SCOTUS in 2012 so it's an old case. Earlier, I thought the Court might be awaiting other cases on the commercial conditions of Sec. 922 of the Gun Control Act, and might bundle Lane and others together. Lane is not a 2A case yet, but it is on the verge.

        As for the NRA, I don't think it wants Lane together with theirs. I'm not even sure the NRA wants its own two cases merged for argument! True, there would be some judicial economy in hearing and deciding both at the same time. But I'd want two separate bites at the apple. Some might argue that you can't reasonably reverse McCraw without finding the sales right in the BAFTE case, but that's not necessarily so.

        2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

        by TRPChicago on Sat Feb 01, 2014 at 07:41:16 PM PST

        [ Parent ]

  •  Thanks for the diary, TRPChicago (7+ / 0-)

    It was very informative and educational.

    I feel two ways about the age thing.  I do firmly believe that 18-21 year olds should be limited in their ability to own fireams, but at the same time I think this whole "legal" age this is complicated.  I have always thought that being able to serve in the military but not drink was kind of counterintuitive.  We as a society feel that it's ok to put a gun in an 18 year old's hands in the military but not when he gets home.

    So I wonder what the answer might be - I think there needs to be some consistency.  Could the answer be raising the age of military eligibility?

    I blog about my daughter with autism at her website

    by coquiero on Sat Feb 01, 2014 at 05:26:26 PM PST

  •  I see we have more voters than commenters. (5+ / 0-)

    That's not at all unusual, but what's especially good - I think - about FLAP is the commitment to have exchanges of insights about Second Amendment law and policy ... arguments and pronouncements, too, but with some reasons behind them.

    I try to be neutral and even-handed, but in this diary, I made my own views on these two cases pretty obvious. What would be influential is principled arguments favoring the full variety of approaches. (As the old saying goes, "You ain't learning nothin' when you're talkin'.")

    That said, I'm taking the rest of the evening off to encourage a minor but nettlesome health issue to go away. Please talk amongst yourselves!

    2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

    by TRPChicago on Sat Feb 01, 2014 at 08:01:27 PM PST

  •  The age distinction is spurious (8+ / 0-)

    And unnecessary. If a 19 year old can be issued a pistol as an MP, he is certainly qualified to own one personally.

    Ditto with carrying said pistol.

    We are in for a real law concert here over the next 18-24 months. Between these cases and the two restrictions coming out of the NE, we could potentially see quite the shakeup of gun control laws.

    •  I would argue that (1+ / 0-)
      Recommended by:
      LilithGardener

      no one is qualified to own a firearm personally, but I do agree that the age distinction is arbitrary and, as a legal matter, ridiculous considering the age of men and women we train and pay to handle weapons.

      •  That's reasonable and thoroughly logical (2+ / 0-)
        Recommended by:
        rduran, Glen The Plumber

        We are talking about the subset of individuals who can pass military screening criteria, pass basic military training, and pass the specialty training to be a military police officer. I agree those individuals should be eligible for a license to own and carry pistols, nightsticks, tazers etc. after they learn/test for competency in federal, state, and local gun laws (appropriate to their license application).

        Do military police carry their service weapons and ammunition home with them each night? Or do they check them out of the armory every time they report for duty, and return the weapons/ammo to the armory whenever they go off MP duty for the day.

        I'm asking about the difference between MP as a designated specialty that requires medical & psychological screening, basic intelligence and competency to learn through a structured training program, ability to handle stress, and confrontation with authority without blowing a fuse, etc.

        "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

        by LilithGardener on Sun Feb 02, 2014 at 08:47:32 AM PST

        [ Parent ]

        •  Provided those implements (1+ / 0-)
          Recommended by:
          LilithGardener

          are kept and taken up only in the course of duty, I agree.

          Unfortunately, can't answer your question.  Don't even know how to find out the answer short of asking someone with personal experience (or who can at least point us to the relevant directives).

    •  True on the "law concert." Will this be modern... (2+ / 0-)
      Recommended by:
      LilithGardener, Glen The Plumber

      ... or classical music they'll be playing?

      As for owning a pistol, a 19 year old can. It's only FFL sales at issue in BATFE. Perhaps the age law was an anomaly even in 1968, but there were plenty of 19 year olds in the Viet Nam war then. For me, it's a matter of legislative policy, not Constitutional imperative. If the age limit is not right for the times, Congress can change it.

      As for carrying, I think a constitutional right to carry would open Pandora's box for the courts. (Being in Chicago and only on the verge of concealed carry in public places, I'm very wary but I'm willing to change my mind.)

      Age might look like the only issue in McCraw but it isn't. First, the Court couldn't logically extend Heller to 18-21 year olds only.  Second, say SCOTUS holds that the Second Amendment requires the ability to carry an operable firearm in public for self defense. What about the bushel basket of legislated restrictions that many states have surrounded public carry with, such as what guns can be carried and where?

      I don't see SCOTUS decreeing that there's a constitutional right to have handguns in football stadiums, for example (there are some classical college rivalries that could be a whole 'nother game!). But there would be a lot of constitution-level litigation on details that are essentially matters of locality-oriented policy. While a gun advocate may not be troubled by that, the right being seen as paramount and fundamental, I am.

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Sun Feb 02, 2014 at 05:39:41 AM PST

      [ Parent ]

      •  Don't you see this as silly though? (3+ / 0-)
        As for owning a pistol, a 19 year old can. It's only FFL sales at issue in BATFE.
        Isn't that analogous to saying that 18-20 year old women can legally take birth control, she just can't purchase it from licensed pharmacists?

        If 18-20 year old citizens are lawfully allowed to possess pistols they should lawfully be allowed to purchase them from licensed dealers.  I'm not certain what public policy objective is served by compelling them to purchase from the second hand market.

        There are a few States that prohibit them from possession (New York won't issue a pistol license to someone 18-20 unless they've served in the military, which screams Equal Protection violation to me, but that's another discussion), so obviously this point doesn't apply in those jurisdictions.  In the rest of the country though, what's the point of prohibiting FFL sales to otherwise legal possessors?

        There are four boxes to be used in the defense of liberty: soap box, ballot box, jury box and ammo box. Use in that order.

        by Crookshanks on Sun Feb 02, 2014 at 10:02:04 AM PST

        [ Parent ]

        •  You are bringing logic to a political compromise. (4+ / 0-)

          Nothing wrong with that ...

          ... but compromise means that some principles get compromised. Logic is typically more friendly to one side than the other.

          If logic reigned, there'd be no debt ceiling issue, Congress having already authorized/ appropriated the spending. Nor would there be overlapping committee jurisdictions, much of the Tax Code, 40-some votes on the same issue in the same session, etc. There would also have been no Constitution in 1776. But logic does not govern politics.

          Yes, I think the FFL/age point is an anomaly that can easily be got 'round by other means. So, if there's enough interest to warrant change, Congress, who created it, ought to change it. Redirecting Congress's judgment on a matter like this, in my view, is a Federal legislative issue, not a Federal constitutional issue.

          2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

          by TRPChicago on Sun Feb 02, 2014 at 10:38:07 AM PST

          [ Parent ]

          •  Oops, " ... Constitution in 1789." (3+ / 0-)

            Sorry about that.

            2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

            by TRPChicago on Sun Feb 02, 2014 at 10:41:23 AM PST

            [ Parent ]

          •  It's a Judicial issue if the rights of those 18-20 (2+ / 0-)
            Recommended by:
            LilithGardener, theatre goon

            year old citizens are being infringed upon, even if there's an "easy" workaround.  Of course, there isn't an "easy" workaround that allows one to remain complaint with the law.  Straw purchases are illegal, so you're left with the second hand market, which may or may not have what you want.

            Since you made analogies I don't feel so bad having done so myself.  Ask yourself if most of Daily Kos would deem the birth control restriction I discussed as having an "easy" workaround, or a restriction on abortions until age 21.

            Heck, the various abortion restrictions purposed by certain red states have an "easy" workaround.  Hop a bus to a blue state.  That's an option not available to would be gun owners, since the GCA prohibits out of state handgun purchases.

            There are four boxes to be used in the defense of liberty: soap box, ballot box, jury box and ammo box. Use in that order.

            by Crookshanks on Sun Feb 02, 2014 at 04:13:01 PM PST

            [ Parent ]

            •  But you begin by declaring there is a right. (3+ / 0-)

              Whether there is a "right" in the first place is the question. And is it a "core" or "fundamental" right or not? - that level of scrutiny issue.

              RE analogies, I'm working here with a couple of specific law cases and, in response to your point, I mentioned some examples of the lack of logic in politics. You raised analogies. On birth control and abortions, there are constitutional cases, well-established law, and I don't think they are analogous. There is not - yet - any such substantive development of law on firearms beyond the decision that SCOTUS itself limited in Heller.

              2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

              by TRPChicago on Sun Feb 02, 2014 at 05:24:18 PM PST

              [ Parent ]

              •  Heller concluded that you have the right to (4+ / 0-)

                possess a handgun.  I'm a loss for why you think that ruling isn't applicable in the instance of an 18-20 year old who otherwise be able to possess a handgun.  I'm also somewhat baffled by your argument that people should defer to the Legislative in instances where they feel as though their rights are being violated:

                For me, it's a matter of legislative policy, not Constitutional imperative. If the age limit is not right for the times, Congress can change it.
                Really, I'm dumbfounded that I would read that position on the GOS.  I highly doubt it would be in the mainstream around here with regards to any other issue, but I guess that goes back to your valid point about politics not being very logical.  Same bit here:
                But there would be a lot of constitution-level litigation on details that are essentially matters of locality-oriented policy.
                "Locality-oriented policy"?  Is that a politically correct (for GOS) way of saying State's rights?

                I didn't address your other main point:

                As for carrying, I think a constitutional right to carry would open Pandora's box for the courts.
                I don't think it's the role of the courts to worry about whether or not something opens Pandora's box.  Such a concern would incline them to take the easy way out, with predictable consequences for many of the famous Civil Rights rulings of modern times, including but not limited to Heller.
                What about the bushel basket of legislated restrictions that many states have surrounded public carry with, such as what guns can be carried and where?
                There will be litigation to determine the scope of permissible regulations.  Some will survive, some won't.  What's the problem?  Case law evolves.  It's nothing to be afraid of.

                There are four boxes to be used in the defense of liberty: soap box, ballot box, jury box and ammo box. Use in that order.

                by Crookshanks on Sun Feb 02, 2014 at 06:15:06 PM PST

                [ Parent ]

                •  Good points, CS, but with respect, you misstate... (3+ / 0-)

                  ... some of mine.

                  Heller held there was a constitutional right to have a readily operable handgun in one's home for self-defense. That is not as broad a “right to possess a handgun,” as you phrase it.

                  Don't be at any loss to wonder why I think Heller doesn't apply to 18-20 year olds today. Several Federal courts don't either. Maybe we should have such a constitutional right, maybe we will, but we don't yet.

                  I am not arguing that plaintiffs in these gun cases should defer to the legislature and not go to court. Let ’em sue, just as they have here, to vindicate the rights they assert. Win or lose, this is as you said, how the law evolves.

                  But recognize that many important rights are not secured by the constitution but by legislation. My position is that the age limits and public carry issues at stake in the NRA cases can be cared by legislatures and do not rise to constitutional proportions. We disagree on that. And I accept that I could be wrong as a matter of sensible public policy or by the law SCOTUS creates if it accepts these cases for review.

                  Your point on my use of  “locally-oriented policy” is right on. I inartfully phrased this but I suspect you still won’t approve of my views. I think Colorado is different that urban Chicago. If the Illinois legislature is wrong - if, for example, public carry turns out to be a crime problem because patrons in the bar down my street don't know if the guy who pulls a gun is a Good Guy or a Bad Guy - then the legislature can reverse its judgment … and not affect Denver. And Colorado could be more or less liberal about carry rights, and not affect Chicago. This looks to me like a good situation for state-by-state rights.

                  As for Pandora’s box of litigation, again, you’re generally correct. Many times, most times probably, courts do not worry about a spate of litigation following their decisions. But some times, they do. Then, opinions are written to deter or defer peripheral challenges, extensions of principle, the next set of likely argument points. Judges write things like:
                   

                  … nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. District of Columbia v. Heller, 554 U.S. 570 (2008).
                  I’m less antagonistic to your advocacy than may appear. But I am persnickety about words and descriptions of cases for I’ve stood corrected many times over the years about what I’ve written, sometimes by judges. (Including by editors in the preparation of this diary. I may not have it entirely right yet, but it's pretty close and I’m still working on it.)

                  Let's remember this conversation and have another when SCOTUS announces its action on these cases.

                  2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

                  by TRPChicago on Sun Feb 02, 2014 at 08:42:33 PM PST

                  [ Parent ]

                  •  Do you think Chicago/Illinois will go against the (3+ / 0-)
                    Recommended by:
                    Kasoru, Crookshanks, TRPChicago

                    grain when it comes to shall issue concealed carry and it'll actually be a problem there? Or do you think it'll go the same way the majority of the states (those that have shall issue) went?

                    I don't agree with states rights or locality rights when it comes to civil rights. There should be a base line incorporated against the states.

                    You are correct that Colorado is different than Chicago. Should other civil rights be treated differently based on those differences?

                    •  KV, I don't know what Chicago's experience ... (2+ / 0-)
                      Recommended by:
                      KVoimakas, LilithGardener

                      ... is likely to be.

                      The history of guns in the city is entirely criminal up 'til now, obviously, with far too many homicides and bullets, stray or otherwise, going through shingling or plaster walls and hitting people next door, across the street, etc.

                      Arming more people so they can protect themselves or deter others as they see fit does not sound appealing. We have a very popular bar/restaurant circuit nearby that gets crowded on nights and weekends and stays open 'till 4am. Bouncers check ID's for age, all right, but I wouldn't bank on their ability to enforce the owner's No Guns Allowed signs.

                      In earlier colloquies with me, you've made a good case for not prejudging. Based on results elsewhere, maybe we need not be concerned. But our alderman - 1 of 50, each of whom represents a constituency the size of many cities, a Progressive who usually reads the vital signs from her voters pretty well - wants to see No Guns signs in virtually every commercial establishment in the Ward.

                      We'll see. I will be very relieved if circumstances prove you right!

                      As for vital civil rights like voting, yup, that's pretty much state and local, for better and worse. The same can be said of access to health care and a lot of other rights we depend on. As a practical matter, we can only Federalize (or constitutionalize) these to a point. The ideal may vary according to the nature of the right.

                      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

                      by TRPChicago on Mon Feb 03, 2014 at 07:51:18 AM PST

                      [ Parent ]

                  •  How can you exercise (2+ / 0-)
                    Recommended by:
                    KVoimakas, Crookshanks

                    the right to have a handgun for self defense of the home.. if you can't purchase one?

                    Heller held there was a constitutional right to have a readily operable handgun in one's home for self-defense. That is not as broad a “right to possess a handgun,” as you phrase it.
                    You have a right to an abortion, but you can't have a clinic in the state. You have the right to vote, but you need an ID.
                  •  You're a very reasonable person, so thanks (4+ / 0-)

                    for that, even if we disagree on some of the broader issues.

                    I'll note here:

                    But recognize that many important rights are not secured by the constitution but by legislation. My position is that the age limits and public carry issues at stake in the NRA cases can be cared by legislatures and do not rise to constitutional proportions.
                    I'd agree with you if all of the Legislatures were reasonable.  There's a huge range of "reasonable" between what Washington DC does and what Arizona does.  If they were all in that range we wouldn't be having this conversation, but we all know there's zero chance of a jurisdiction like New Jersey ever making it remotely feasible for an average citizen to carry a firearm.  So we're left with the courts.

                    I think that concealed carry can be regulated in the public interest, with training requirements and the like, but I don't think it can or should be prohibited (or de-facto prohibited), which is the case in a lot of locales.

                    You do seem like a very reasonable person, so in response to your trepidation about concealed carry in Chicago I'll just echo the first part of KV's post.  It hasn't been a problem anywhere else.  I doubt it will be so in Chicago.

                    There are four boxes to be used in the defense of liberty: soap box, ballot box, jury box and ammo box. Use in that order.

                    by Crookshanks on Mon Feb 03, 2014 at 07:28:17 AM PST

                    [ Parent ]

    •  Perhaps thats the distinction that should be made (3+ / 0-)

      If you're between 18 and 21 and have undergone the appropriate military training, then yes. If not, then no.

      KOS: "Mocking partisans focusing on elections? Even less reason to be on Daily Kos."

      by fcvaguy on Sun Feb 02, 2014 at 04:24:54 PM PST

      [ Parent ]

      •  Playing devil's advocate ... (1+ / 0-)
        Recommended by:
        fcvaguy

        Why military training?  How about a form of civilian training too?

        When I think of the kids in high school that went, or wanted to go into the military, I would be much less inclined to trust them with a gun than I would the honors students who are college bound.  The college student is also more likely to face a violent crime situation during their normal routine than a soldier.

        The classic argument against college students is, of course, the drunken frat party and orgy scenario.  This doesn't apply to everyone.

        "It's not surveillance, it's data collection to keep you safe"

        by blackhand on Mon Feb 03, 2014 at 10:50:48 AM PST

        [ Parent ]

  •  Good job. n/t (5+ / 0-)

    Don't tell me what you believe, show me what you do and I will tell you what you believe.

    by Meteor Blades on Sat Feb 01, 2014 at 11:34:36 PM PST

  •  Just as a point of fact... (4+ / 0-)

    If you, in fact, load a blunderbuss with nails or glass, you won't have that blunderbuss very long.  Such loads will severely damage the barrel.

    That doesn't mean it wasn't done, we have the historical references to show that it was, but it was a very poor practice, indeed.

    Properly, they would have been loaded either with, as the caption to the picture did state, coarse shot, or, quite often, a single ball -- much like a modern shotgun will fire slugs.

    Half a pint, though, is rather over the top.

    "No amount of belief makes something a fact." --James Randi

    by theatre goon on Sun Feb 02, 2014 at 04:01:02 AM PST

  •  Truly excellent work and analysis (3+ / 0-)

    KOS: "Mocking partisans focusing on elections? Even less reason to be on Daily Kos."

    by fcvaguy on Sun Feb 02, 2014 at 04:20:15 PM PST

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