Macdonald negate "sporting purposes"?

[seanc]

Since macdonald seems to recognize the 2a as both an individual right as well as being not predicated on either the militia or duck hunting does this negate the sporting purposes clauses?
Would either sporting purposes, magazine limits or the arbitrary hand gun weight limits hold up?

Finally, I did not see what level of scrutiny the 2a is now to get. Anybody?

 

[cekim]

Since macdonald seems to recognize the 2a as both an individual right as well as being not predicated on either the militia or duck hunting does this negate the sporting purposes clauses?
Would either sporting purposes, magazine limits or the arbitrary hand gun weight limits hold up?

Finally, I did not see what level of scrutiny the 2a is now to get. Anybody?

Nor did I. A search of the PDF yeilds no explicit statement in the opinion, so if there is a magic legal incantation that reveals this, I don't know how to find it...

While in principle, I believe that this does indeed bring suitability itself along with the various restrictions into question, this will no doubt have to be litigated and/or legislated as the liberals mistakenly believe the high courts acceptance of any abridgment of this right (felon, mentally ill, school zone, etc...) means that all abridgment is ok.

So, at this point it is academic - nothing has changed in MA, but the entire body of law justifying our regulatory scheme has itself been invalidated (as most of it is based on the 1970's decision finding that there is no individual right to keep and bear arms). Unless the legislature acts, the SJC's prior ruling will have to be challenged.

 

[Coyote33]

... the entire body of law justifying our regulatory scheme has itself been invalidated (as most of it is based on the 1970's decision finding that there is no individual right to keep and bear arms). Unless the legislature acts, the SJC's prior ruling will have to be challenged.

So, how exactly can this happen? Is it a class action lawsuit? Or can someone in the legislature just put forth a bill to repeal all gun laws?

This makes 2259 make more and more and more sense!

 

[cekim]

So, how exactly can this happen? Is it a class action lawsuit? Or can someone in the legislature just put forth a bill to repeal all gun laws?

This makes 2259 make more and more and more sense!

Legislature can do it - like any other bill.

If it is done in the courts, it will require a lawsuit which requires a plaintiff with "standing."

So, either MacDonald will be raised as a defense to a criminal/civil charge as Heller was with Runyan/Bolduc or a civil rights claim is filed in response to a denial/revocation of an LTC.

 

[mousegunfan]

Maybe someone (not licensed) needs to go to a gun store and try to buy a gun. Then when denied let the lawsuit start. Something that is a constitutional right does (should) not need a license. Goal needs to back someone on this.

 

[Rob Boudrie]

Something that is a constitutional right does (should) not need a license.

This would be a substantial change to Heller, as that decision directed DC to issue a license; it did not establish that no license was necessary.

 

[BigMike]

Maybe someone (not licensed) needs to go to a gun store and try to buy a gun. Then when denied let the lawsuit start. Something that is a constitutional right does (should) not need a license. Goal needs to back someone on this.

Would trying to have an unapproved gun transferred do the trick equally as well?

If so, I have a Colt Official Police Mk 4 in nickel made in the 70's that was/is a gift from my grandpa in TN and even GOAL said I couldn't get it transferred in.

 

[cekim]

This would be a substantial change to Heller, as that decision directed DC to issue a license; it did not establish that no license was necessary.

Yes, the thorn in the side of Heller and MacDonald is that despite recognizing the fundamental nature of this right they failed to understand the many violations of this concept evident in Federal gun laws today...

They made it very clear that they did not intend to reverse, overturn or invalidate any Federal statute. They even mention some of the previously contested ones - school zones, mentally ill, felon in possession, etc...

This is where the libtards dive in and assume that this gives them a blank check to maintain their current regime...

 

[cekim]

Would trying to have an unapproved gun transferred do the trick equally as well?

If so, I have a Colt Official Police Mk 4 in nickel made in the 70's that was/is a gift from my grandpa in TN and even GOAL said I couldn't get it transferred in.

I think there's an exception for estate bequests, but as a gift, that sounds right... [sad2]

 

[BigMike]

I think there's an exception for estate bequests, but as a gift, that sounds right... [sad2]

Then I would volunteer to be the guinea pig if GOAL or NRA pays the legal fees! What do I have to lose? I already can't have that gun until (you know what), so it looks like this case could end two ways: I could either end up with a great shooting revolver, or right where I'm at currently.

 

[ShadeWPI]

The most immediate affect this will have it that it will open up a massive number of appeals of State Court decisions that dismissed Second Ammendment challenges to state and local laws based on the fact that the Second Ammendment hadn't been "Incorperated" under the 14th amendment. Now many of those decisions can be challenged and will have to be re-heard by lower court judges since they will need to weight the merit of the Second Ammendment arguement which was easily dismissed previously.

The Supreme Court has affirmed that "reasonable restrictions" are allowed, though out-rights bands or virtual bands (the later being a license requirement and then not issuing licenses) are unconstitutional.

It might be possible to challenge the FID requirement in MA under the Equal Protections clause, arguing that the license, training course, etc places an undue burden on the poor, virtually banning them from exercising their constitutional right to own a firearm since they can not afford the restrictions. - A similar argument has been successfully used to deem certain identification requirements for voting Unconstitutional since the State requires a fee to issue a license.

It might also be possible to challenge discressionary issuing of FIDs by a similar argument, challenging that the individual denigning an FID without "just cause" is comitting a civil rights violation against you (That would make it a personal law-suit against the issuing officer, since he is personally denigning your constitutional right)

This might be the fastest step to getting the FID rules changed since it could involve thousands of personal law-suits directly against the local Chief of Police for violating the Constitutional Rights by denigning them and FID "without justifible cause"

Any challenge against LTCs, Gun Bans, Banned Gun Lists, etc would need to be based on them being "Unreasonable Restrictions" currently, which means you're unlikely to get anywhere until you can push it up to the Supreme Court and have them decide on "Reasonable"

 

[ShadeWPI]

Then I would volunteer to be the guinea pig if GOAL or NRA pays the legal fees! What do I have to lose? I already can't have that gun until (you know what), so it looks like this case could end two ways: I could either end up with a great shooting revolver, or right where I'm at currently.

You'd need to argue that this is an "unreasonable restriction". The local and state courts will undoubtedly determine that it is reasonable, so till will be forced to the federal level to determine "what is reasonable"

Better to challenge discressionary issuance of FIDs first. You're a lot more likely to win an argument that a constitutional right to bear arms can not be restricted at the discression of an individual and "reasonable restrictions" need to be clearly and specifically legislated. That the legislator MUST come up with specific conditions for issuing or denigning a license.

 

[pdm]

You'd need to argue that this is an "unreasonable restriction". The local and state courts will undoubtedly determine that it is reasonable, so till will be forced to the federal level to determine "what is reasonable"

Better to challenge discressionary issuance of FIDs first. You're a lot more likely to win an argument that a constitutional right to bear arms can not be restricted at the discression of an individual and "reasonable restrictions" need to be clearly and specifically legislated. That the legislator MUST come up with specific conditions for issuing or denigning a license.

LTCs are discretionary, FIDs are not. The first challenge is probably going to be possession of a handgun with a FID. Honestly, if I could have bought a handgun on a FID and there wasn't this high-cap/low-cap BS, I wouldn't have gotten a carry license. At the time, it didn't interest me. But they forced me to get one, so now I'm gonna use it. The FID should also be free, but I won't hold my breath on that.

 

[Finalygotabeltfed]

This would be a substantial change to Heller, as that decision directed DC to issue a license; it did not establish that no license was necessary.

And that decision was just another in the historically long train of wrong/bad/incomplete decisions by the SCOTUS.....and it should be changed. It should have concluded that having to pay to exercise a right is unconstitutional.

 

[Len-2A Training]

Per MGLs, FIDs are NOT discretionary at all. I have heard of some chiefs treating them that way, but they are in violation of the law (for which there is no penalty on them).

In fact a problem is that MGL REQUIRES issuance of an FID to Federally Prohibited People under certain circumstances . . . in which case if they are caught with modern guns/ammo they can be sent to the "big house" for Federal Law violation.

 

[gjones77]

You'd need to argue that this is an "unreasonable restriction". The local and state courts will undoubtedly determine that it is reasonable, so till will be forced to the federal level to determine "what is reasonable"

Better to challenge discressionary issuance of FIDs first. You're a lot more likely to win an argument that a constitutional right to bear arms can not be restricted at the discression of an individual and "reasonable restrictions" need to be clearly and specifically legislated. That the legislator MUST come up with specific conditions for issuing or denigning a license.

I don't even think we'd need to go the "unreasonable restriction" route if he were to go after the "common use" portion of the Heller ruling, obviously that particular firearm is/was in "common use" outside of Massachusetts and that by not allowing that firearm to be transferred to Mass is violating the SCOTUS recent rulings. More to the point, it would also allow us to go after the EOPS and AG approved list, since again they are essentially banning a common use firearm by preventing transfers of that type of firearm.

 

[Kevlar]

...In fact a problem is that MGL REQUIRES issuance of an FID to Federally Prohibited People under certain circumstances...

Len, they are required to ensure that someone is NOT a FPP prior to issuance...

M.G.L. c.140 s.129B

A firearm identification card shall be issued and possessed subject to the following conditions and restrictions:

>snip<

(2) ...If the information available to the colonel does not indicate that the possession of a non-large capacity rifle or shotgun by the applicant would be in violation of state or federal law, he shall certify such fact, in writing, to the licensing authority within such 30 day period.

(3) ...no such card shall be issued unless the colonel has certified, in writing, that the information available to him does not indicate that the possession of a rifle or shotgun by the applicant would be in violation of state or federal law.

I understand that some FPPs obtain FIDs, but the issuance itself is a violation of the bolded sections of the above statute.

 

[Len-2A Training]

Len, they are required to ensure that someone is NOT a FPP prior to issuance...

I understand that some FPPs obtain FIDs, but the issuance itself is a violation of the bolded sections of the above statute.

OK, my "incompleteness" in what I stated created this mis-reading. Sorry. Let me try again.

Since certain NON-Fed DQs are MA-DQs for LTC (lifetime DQs), after a set period of time, MA MUST issue an FID. BATFE interpretation/regs say that "you either have FULL rights or NO RIGHTS" wrt firearms. Since MA won't issue an LTC and thus ban possession of handguns in a defacto manner, the Feds look upon the person as illegal to possess ANY GUNS/AMMO and prosecute accordingly. Rather convoluted, but it has been done in MA before.

 

[Rob Boudrie]

Since certain NON-Fed DQs are MA-DQs for LTC (lifetime DQs), after a set period of time, MA MUST issue an FID. BATFE interpretation/regs say that "you either have FULL rights or NO RIGHTS" wrt firearms. Since MA won't issue an LTC and thus ban possession of handguns in a defacto manner, the Feds look upon the person as illegal to possess ANY GUNS/AMMO and prosecute accordingly. Rather convoluted, but it has been done in MA before.

Close but no ceegar.

Non-federal DQs are not federal prohibitions. One such example would be a misdemeanor non-domestic violence charge with a maximum sentence not exceeding two years. Such a person could get an FID after 5 years, and be able to possess a firearm in full compliance with state and federal law.

The situation Len alludes to is the individual who is federally disqualified but is eligible for an FID after 5 years. Examples include the individual who failed to report a hotel fire, accepted a deposit on behalf of an insolvent banking institution, or first offence MA DUI under the current penalty structure(*). The Caron decision (SCOTUS) stated that the fact that the state of MA partially restored the gun rights of the individual does not negate any federal prohibition that is place for the individual. It did not elevate a state level prohibition into a federal one, and there is no federal "felon in possession" charge that is applicable to someone with a state DQ that does not meet the federal requirement for the prohibition.

Since certain NON-Fed DQs are MA-DQs for LTC (lifetime DQs), after a set period of time, MA MUST issue an FID.

The real issue is that MA MUST issue an FID 5 years after completion of any sentence for a FEDERAL DQ. Non-federal DQ's don't enter into this particular issue.

BATFE interpretation/regs say that "you either have FULL rights or NO RIGHTS" wrt firearms.

Federally true; not relevant for "state only" restrictions - a subtle difference often omitted in analysis of Caron.

Consider the case of the NH resident who has never even been to MA, but has a MA only disqualifier on record. He certainly does not have "all rights", thus a literal "all or nothing" would elevate any state only prohibition to a federal disqualifier.


* - Each of these is a federal DQ because, while a misdemeanor, the maximum sentence exceeds 2 years (in fact, a 2.5 year max is very common for misdemeanors in MA)

ps: The easiest way to prove me wrong would be to cite the federal statute that someone with an FID and a state only disqualifier could be charged with under federal law.

 

[Len-2A Training]

Mea culpa. Rob has it right.

 

[Kevlar]

Damn, Rob beat me to it and said it more eloquently than I ever could...thanks, reps sent.

 

[seanc]

A couple of other points..

If the Scotus has come down and said that the 2A is NOT about hunting ducks or squirrels and that, in fact, the point of the 2A is for protection of life, property and country, then how can the sporting use criteria be supported if not only in mass but, also on the federal level?
Numerous guns have been banned from importation due them not being deemed as suitable for "sporting purposes". Russian SVDs, Norincos, Euro/ Asian non adjustable sites handguns etc.. all would now appear to be eligible to again be imported.

Also, guns like Street Sweepers and USAS-12 all should be re-unclassified as non DD's. Un Neutered Saigas, should be importable.
And in mass the farcical exemption for "target" models should go away.

 

[M1911]

If the Scotus has come down and said that the 2A is NOT about hunting ducks or squirrels and that, in fact, the point of the 2A is for protection of life, property and country, then how can the sporting use criteria be supported if not only in mass but, also on the federal level?

Heller ruled that the 2nd Amendment guaranteed the right to protect yourself in your home. An LTC with a Sporting restriction allows you to protect yourself in your home.

Numerous guns have been banned from importation due them not being deemed as suitable for "sporting purposes". Russian SVDs, Norincos, Euro/ Asian non adjustable sites handguns etc.. all would now appear to be eligible to again be imported.

Heller allows "reasonable" regulations. No one knows what that means, so I don't think you can say that Heller allows such guns to be imported.

 

[jar]

Then I would volunteer to be the guinea pig if GOAL or NRA pays the legal fees! What do I have to lose? I already can't have that gun until (you know what), so it looks like this case could end two ways: I could either end up with a great shooting revolver, or right where I'm at currently.

You can also have the gun when it reaches 50 years old if you get a C&R FFL.

 

[seanc]

Heller ruled that the 2nd Amendment guaranteed the right to protect yourself in your home. An LTC with a Sporting restriction allows you to protect yourself in your home.


Heller allows "reasonable" regulations. No one knows what that means, so I don't think you can say that Heller allows such guns to be imported.

But... The reason that ATF disallowed import (for example SVDs) of certain guns was under the rationale of sporting purposes (or lack there of). Makarovs (e.g) had to be modified with adjustable sights to be considered eligible under the sporting purposes criteria. Street Sweepers and USAS were reclassified as DDs due to them not being appropriate for "sporting purposes".

While Heller and MacDonald, apply specifically to guns in the home. It would seem that this really is a dramatic and drastic change. As now that the 2A applies to all the states, and the purpose thereof includes defense as fundamental to that right (not limited to the hunting of geese within one's own home), it would seem to follow that the door has been blown open to completely negate any reference to "sporting purposes" criteria.

 

[RKG]

The Supreme Court has affirmed that "reasonable restrictions" are allowed, though out-rights bands or virtual bands (the later being a license requirement and then not issuing licenses) are unconstitutional.

Actually, the term "reasonable restrictions" appears (accordingly to my version of Adobe Acrobat) only once, and that is in Mr. Justice Stevens' dissent.

So, while the pundits have made the same statement as quoted herein, I don't believe it to be correct. Indeed, the language I quoted earlier today suggests that the "balancing" between the fundamental right and societal concerns has been precluded by Heller, which is now applicable to the states.

http://www.northeastshooters.com/vb...ll-50-States?p=1474894&highlight=#post1474894

The issue, rather, will be defining the boundaries of the 2d Amendment right -- similar to defining the boundaries of, say, the 1st Amendment right -- and then concluding that within those boundaries, the right is absolute. Thus, for instance, it has been decided that the 1st Amendment right does not include the right yell "Fire!" in a crowded theatre or to sell stocks by a fraudulent statement. However, it does include (incorrectly, in my view) the right to dance nude in a bar or set fire to the American flag, and as to those included activities, no regulation is permitted.

Thus far, the only issue as to scope of the right that the Court has declared involves possession in the house for purposes of self-defense. This is, in part, the way Courts work: they are supposed to resolve the dispute before them, not anticipate future issues, and in both Heller and McDonald, the plaintiffs complained of not being able to possess handguns in their houses for self defense.

As a consequence, fleshing out the boundaries and dimensions of the 2d Amendment right will require more court decisions resolving new disputes. Two obvious issues on the horizon are: a) the right to carry beyond one's curtilege, and b) the right to possess certain types of weapons (such as pre-ban M4 clones). Today, we can neither say that either is included or not included (though I have my own predictions as to how things will turn out).

 

[jar]

However, it does include (incorrectly, in my view) the right to dance nude in a bar or set fire to the American flag, and as to those included activities, no regulation is permitted.

Why do you think that's incorrect? (I agree completely with the rest of your post)

 

[center442]

>Snip<
The Supreme Court has affirmed that "reasonable restrictions" are allowed, though out-rights bands or virtual bands (the later being a license requirement and then not issuing licenses) are unconstitutional.

It might be possible to challenge the FID requirement in MA under the Equal Protections clause, arguing that the license, training course, etc places an undue burden on the poor, virtually banning them from exercising their constitutional right to own a firearm since they can not afford the restrictions. - A similar argument has been successfully used to deem certain identification requirements for voting Unconstitutional since the State requires a fee to issue a license.

[ETA: My second sentence, in the first paragraph below, is completely erroneous. I'm leaving it in only because it was referenced in a couple of other posts, and if I removed it a reader wouldn't understand what the posts were referring to. Major brain fart on my part. My apologies.]

I think that the licensing requirement in MA is ripe for challenge. IIRC, prior to the gun law changes in 1998 there was no license required to merely own a firearm in your own home or business. Now, the mere possession of a firearm requires permission from the state. It is also a rather expensive proposition for many folks, and I believe it does place an unfair burden on on people.

I believe it was this same line of reasoning that was used to remove the poll tax many years ago. The poll (voting) tax was very small. I can remember my parents paying $0.50 each when they went to vote. I would think that the right to own the means of defending yourself and family are just as important as your right to vote. If a person is poor, does it mean they must go unarmed and defenseless?

People aren't charged to exercise their right of free speech. I don't expect the government to buy me a radio station to further my free speech, nor do I expect the government to furnish guns to further the right to bear arms, but these basic right shouldn't be subject to a government license at all, let alone an expensive license.

 

[M1911]

But... The reason that ATF disallowed import (for example SVDs) of certain guns was under the rationale of sporting purposes (or lack there of).

So? How does that prevent someone from buying a gun to keep in the home to defend themselves?

I despise all gun control laws. But Heller and MacDonald do not make all gun laws suddenly null and void. They both left huge gray areas that will take decades and mega-dollars to litigate.

 

[M1911]

I think that the licensing requirement in MA is ripe for challenge. IIRC, prior to the gun law changes in 1998 there was no license required to merely own a firearm in your own home or business. Now, the mere possession of a firearm requires permission from the state. It is also a rather expensive proposition for many folks, and I believe it does place an unfair burden on on people.

Why?

Heller didn't direct DC to issue a license at no cost. It directed them to issue a license.