I don't see how (one part of) the new NY gun law can be constitutional

[cthulu2016]

Last edited Wed Jan 16, 2013, 08:07 PM - Edit history (4)

Laws that infringe Constitutional rights face a higher level of judicial scrutiny than laws that do not.

A tax on avocados might seem arbitrary and unfair, but if challenged in court it would face minimal scrutiny. If the legislature had any *rational basis,* even an incorrect rational basis, it would be okay. A legislature could say that it reasons that avocados cause cancer. The court would typically say, even if we don't see any evidence of this avocado cancer thing, that is not our job. The legislature has a right to its opinion on avocados and cancer, and the legislature has the power to tax things it thinks cause cancer, as it does with cigarettes.

Now, if we add a constitutional right to avocados the test changes. The legislature no longer has the power to act on a mere notion that avocados cause cancer. The legislature has a burden to show some kind of legitimate state interest sufficiently important to justify diminishing a right.

With the First Amendment the state is supposed to have a compelling interest, and the regulation must be the least burdensome way to advance that compelling interest. That is a high level of scrutiny.

I do not know what level of scrutiny guns laws face under the Heller and McDonald decisions. It seems lower than the first Amendment merits, but has to be higher than an average law because it involves a personal, constitutional right. (That is the state of the law, which is what it is regardless of what you or I think it ought to be.)

As Rachel reported, the new law passed in NY state extends New York's Assault Weapons Ban to include more weapons by requiring only one "military feature." Any gun that is semi-auto with a detachable magazine and that has any one of a list of military features is included in the ban.

The military features list includes flash suppressors and bayonet mounts.

I do not see how a limitation of (state of the law, not me) a constitutional right can face a level of scrutiny so low that a bayonet mount could be the difference between a legal gun and an illegal gun.

A bayonet mount has no reasonable (a word with a meaning in law relating to the process of reason) nexus to any of the state interests the law is supposed to advance. Having or not having a bayonet mount doesn't change the number of people being shot. So I don't see how, in our current legal regime where the 2nd Amendment confers an individual right (subject to reasonable regulation), New York could argue a sufficient state interest in bayonet mounts.

It will be interesting to see how certain existing and new laws play out under Heller/McDonald. If I was a judge, dealing with clear precedent from the Supreme Court that guns are a constitutional right of some sort, I would tend to strike anything from the military features list that was not directly connected to practical killing capacity, which is the justification for the AWB ban. (The state would be able to argue why a given rule was reasonable and I would be open to persuasion, but they have the burden to show that a limitation of a right is a reasonable regulation.)

This is a different legal world from what we had when the AWB was passed in the 1990s.

We will see.

[Denninmi]

1. Oh, God, now they're coming for our avocados.

My right to keep and bear guacamole shall NOT be infringed.

[frazzled]

3. More to the point ...

The OP seems to be arguing, what's wrong with a bayonet?

I can't think of a single non-military use for a bayonet.

[dkf]

8. Not a bayonet...a bayonet mount.

I assume its so the manufacturer can do one gun for different uses. So maybe you could care less about the bayonet mount but now your gun is illegal.

[frazzled]

11. There's no function for a bayonet mount unless ...

you can put a bayonet in it. D'oh.

There's no reason to put a bayonet mount on a civilian, commercial weapon. Why do people want to argue angels on the head of a pin? Nobody's buying these false defenses of the indefensible.

[cthulu2016]

22. The matter is not limited to your understanding of it

I am talking about a legitimate legal matter having to do with standards of scrutiny in American judicial practice.

We know that guns face something more than rational basis because DC surely had a rational basis for their gun laws struck down in Heller.

We know that guns face a lower standard than compelling state interest, narrowly tailored, etc, of the sort we see in attempts to, for instance, regulate publications of religions.

We know the gun scrutiny standard is somewhere in the middle there.

But we don't yet know where. The Heller and McDonald decisions are faily new, by judicial standards.

This has not all been hashed out.

[Fla_Democrat]

38. Sure about that?

There's no function for a bayonet mount unless ... you can put a bayonet in it. D'oh.




http://www.amazon.com/NcStar-Bipod-Bayonet-Quick-Release/dp/B0012NF9LY

The ABAB AR-15 Quick Detach Bayo Lug Bipod is the Newest Edition to the NcSTAR line of Bipods. This Solid Anodized Aluminum Bipod snaps into place on your AR-15/M16 bayo lug with ease. Removing the ABAB is just as easy with a simple push of a button it slides right off. The ABAB also has extendable legs so you can adjust them to the height that is perfect for you.

[Leaning Left]

18. I can't think of a single non-military use for a bayonet

Hog hunting. I live in Alabama.

[frazzled]

20. Well, whoopee for you

There's always someone who comes up with some nonsensical counterargument. Knock yourself out poking poor hogs in the belly.

The rest of us--that is the 99.999% of Americans who do not want to bayonet pigs--do not wish arms that have military-style features. You just may have to find a different way to spear your hogs. Maybe you could wrassle them.

[Nuclear Unicorn]

25. Since most pro-gun control arguments center on the volume of fire

why would a bayonet, which is obviously more labor intensive and time-consuming than a semi-automatic weapon, require banning?

And why do 99.99% of a group get to infringe on the rights of a minority? I always thought the purpose of acknowledging something was a right was to inform the majority that they could not intrude without a compelling interest.

Is there a compelling interest? How many public rampages have involved bayonets?

[frazzled]

28. Have your "spear": just don't put it on the end of a gun

Look, people are not free to do whatever they want. We have many laws that restrict people's absolute freedom to do anything.

I want to run down the street naked. I enjoy that. But it is against the law. Deal with it. We are a nation of laws, and as long as they don't restrict your civil liberties (and YES, we are arguing that owning a military-style assault weapon is NOT among your civil liberties), we can pass a law of whatever nature we wish.

I find it hilarious that we are down to arguing about bayonets. Is there no nit too ridiculous to pick for the gun fundies?

[phillipstd]

32. collectors

the 1800's collector guns are now banned.... pretty pathetic. might not be logical to use a bayonet for self defense but outlawing them is even more ridiculous. why don't we outlaw sharp sticks, when was the last person run through with a bayonet? The only thing this will do is turn more people on to the red side of voting tickets.

[Nuclear Unicorn]

42. You don't have a right to disturb the peace

You do have a right to self-defense, therefore the law is compelled to refrain from infringing on that right unless there is a compelling interest. The opinions of a group, no matter how large, are not grounds for arbitrarily infringing upon rights.

I find it hilarious that we are down to arguing about bayonets. Is there no nit too ridiculous to pick for the gun fundies?

If it is so nit-picky then why are you demanding they be removed? If it is too much minutae then let it go. It is the pro-ban faction that initiated the fight yet it is the pro-ban faction that complains that a fight has begun. It would be comedic if not for the fact that it is so hypocritical and utterly lacking in self-awareness.

As I noted (and no one has refuted) there has not been an epidemic of bayonet attacks and even if there were they would hurt fewer people. Please cite a reason, beyond your personal preference, that provides a compelling state interest for infringing upon the right of self-defense that is recognized by the Constitution, the Supreme Court, the President, the majority of congress and the American public.

Absent that citation then the choice is left to the individual to decide.

[cthulu2016]

43. You really didn't get the OP even a little bit

It is not a gun store's job to justify a bayonet mount. Even if a gun store is the most evil thing around, it is not their job, in American law.

It is a state legislature's job to justify banning a bayonet mount. Even if the legislature is all angels from heavan and will be Democratic until eternity, the legislature still has to have a good reason to act to limit any right... even what one might consider crummy rights.

That's kind of the entire underpinning of American law.

And things in law follow from that.

[spin]

54. Obviously you have never seen a feral pig. ...

The Most Dangerous Game To Hunt:

***snip***

Wild Boar (Sus scrofa)

Experienced hunters say that wild boar can be even more dangerous to hunt than a bear. Equipped with thick, razor-sharp tusks, and a razor-sharp mind (hogs are the 4th most intelligent animal in the world) a wild boar can weigh a staggering 660 lbs and exhibit extremely aggressive and unpredictable behaviour.

Hunters be warned! After wounding a boar, give the animal plenty of time before you follow it in to the bush. Otherwise, you’ll go from being the hunter to the hunted. Boars will circle a human adversary, charge rampantly and attack from behind.

A survival tip: Pick your tree ahead of time so you can climb out of harm’s way if ever you’re being chased.
http://www.democraticunderground.com/?com=post&forum=1002&pid=2204084

I'm not a hunter but I have friends who are. One told me that he was out in the woods hunting squirrel as a teenager and saw a wild boar. He decided to shoot it with his .22 caliber rifle. He ended up in a tree for a hour or so with one very pissed off hog underneath. Of course he dropped his rifle when he climbed the tree.

That's why some of the hunters I know have a .357 magnum or .44 magnum revolver in a holster on their belt when they hunt hog.

AR-15s with high capacity magazines are legally used to hunt hog in Florida. They are considered a pest as they are not native and do considerable damage to the environment. Extremely brave hunters hunt hogs with spears or knives and dogs.

In passing hog meat can be very tasty if prepared properly.

[rl6214]

50. I use one in the garden

Much sturdier than a knife

[alcibiades_mystery]

5. ROFL

[d_r]

2. the consitution also doesn't call for a

well regulated bushel of avocados.

I know that doesn't count in what your saying, I'm just saying.

[flamin lib]

4. In the Heller ruling Scalia specifically mentioned the M16 as

the type of firearm that could be banned. From this I surmise that short of a complete ban on all guns the states and federal government have wide latitude in what they find acceptable for civilians.

[hack89]

13. A little more complicated

the deciding factor is "in common use at the time" - which is why Heller says handguns cannot be banned. The M-16 argument was about why machine guns can be banned - the argument was simply that the militia argument implies that citizen soldiers would bring with them those weapons they commonly used at home. In other words, it was assumed that there were certain types of weapons that the government would furnish. Citizens would bring those types of rifles "in common use at the time" and the government would supply things like artillery. In the past 50 years, semi-automatic rifles are the defacto standard for civilian rifles - "in common use at the time". So that latitude may not be as broad as you think. Heller was a narrow decision that dealt only with handguns. The issue of semi-automatic rifles has not been fully addressed by the Supreme Court.

[flamin lib]

14. None of that makes any difference. It's what the five conservative judges

rule. Scalia ruled that the 2nd somehow involves self defense. That doesn't exist in the 2nd. It isn't any more complicated than Scalia saying that states and the fed can ban M16 type weapons.

[hack89]

16. There are a lot of rights not explicitly mentioned in the Constitution

Abortion comes immediately to mind.

M16 = automatic weapons. The AWB =/= automatic weapons. The M16 argument was about automatic weapons, not semi-automatic weapons.

[Hugabear]

6. Government absolutely has a right to restrict what types of weapons are available

Nothing in the Constitution guarantees your right to any particular type of gun.

Even if you go with the interpretation that the 2nd Amendment provides an individual right, rather than a group (militia) right, it still doesn't mean that you can have any type of gun you want.

[krispos42]

9. Government has the power, not the right.

I don't think governments have "rights". Neither do corporations, but that's another story.

Anyway, since the question is government's power over a right of individual people, then if Congress decides to ban a certain kind of gun, it has to have a very good reason to.

Otherwise, the government can say "your constitutional right to own a gun is satisfied by the Daisey Red Rider BB gun".

[flamin lib]

15. Well, the Daisey is a smooth bore gun, so it has more in common with the

Founding Father's guns than an AR.

[cthulu2016]

33. The OP doesn't "go with an interpretation"

There is no way to talk about how a law will fare in court without recognizing the actual law in place.

I do not like the personal right thing, but it is inarguably the law of the land in the USA.

So even if you or I do not think that should be the interpretation, it is, in American law today.

The OP is not about "any type of gun somebody wants." It is about whether the state has a right to unreasonable regulation.

One of the things that, legally, makes something unreasonable is having no reason for it. Arbitrary and capricious.


The OP poses a question of whether banning a bayonet mount (which cannot lead to any person anywhere being shot) will meet the threshold of "reasonable regulation" to prevent people getting shot.

When limiting a right, the state has to have a very good reason to limit it. When limiting something that is not a right the State can be more arbitrary.

Since it has only been since 2010 that is was settled that the individual gun right exists, we do not yet know the effects of the implied raising of the threshold of scrutiny.

[samsingh]

53. actually that's true - the wording say 'arms' NOT 'all and every type of arms'

then, as long as some arms are legal, the wording is satisfied.

[Nye Bevan]

7. Well, I'm glad you're not a SC Justice.

There are still a boatload of guns that are legal to buy. It seems obvious to me that "the right to bear arms" is not being infringed.

[Leaning Left]

35. Just "feel good" politics!

See the videos i posted below.
Unless you ban them ALL you aint banning sh$t!

I would rather have a Springfield XD .45 and a 12 Gauge Marine Magnum than a AR-15 any day.

[cthulu2016]

37. You wouldn't feel that way if I was

My interpretation of "reasonable regulation" would be broader than a lot of people's... including many liberal jurists.

It would, however, require that reasonable regulations be reasonable. That word means something in law.

If New York banned all semi-automatic weapons across the board there would be a case to made for that, relative to the legitimate state interest in people not getting shot all the time.

If, however, New York banned all semi-automatic weapons with names starting with A through L that would not be tailored in any rational way to advance the state interest cited as the justification for the law.

I would strike down that law as unreasonable. "Unreasonable" in law does not just mean unfair or extreme, it means un-reasoned. Arbitrary, rather than arrived at through a process of reason.

One can (hopefully) be pro gun-control without being required to be pro-idiocy.

[jmg257]

10. It allows them to control guns like the 'pre-ban' M1A & late WW2/ M1 Carbines.

And they may be able to show interest in doing that.

The feds are going after the M1 carbine too, even though the CMP sells/has sold them. ???

[Tx4obama]

12. The 'state' can "...restrict..."

-snip-

... the Constitution permits a broad range of gun safety measures. In the landmark Second Amendment case, Heller v. DC, Justice Scalia argued that the state can restrict ownership of “dangerous and unusual” weapons and that “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.”

http://thinkprogress.org/justice/2013/01/16/1458551/rick-perrys-sole-solution-to-gun-violence-pray-for-our-children/

More here: http://www.democraticunderground.com/10022202933

[Leaning Left]

17. I thought we learned

I thought we learned from the Clinton era that banning guns is BAD news.
2014 and 2016 is gonna be HELL on ALL of us! I am a troll on several "patriot" boards
and things are gonna get really, REALLY BAD! O'bamas proposals means NOTHING!

The ten year ban that sunset did NOTHING! Ask me questions if you would like and i will tell you how "those people" got around the ban and laughed in our faces just like they are doing now. Yes, they are as mad as hell right now, but they know these new "laws" in the long run means NOTHING!

[RomneyLies]

26. See post 87. eom

[Recursion]

31. Cool story, bro (nt)

[Lex]

41. Enjoy your stay here.

LOL.

[Leaning Left]

19. On a scale from 1-100

A AR-15 WOULD NOT EVEN MAKE MY TOP FIFTY!
Too many better choices. So i say again. We are doing NOTHING but HARMING OURSELVES!

Just a regular ole shotgun!

Pistol

[aandegoons]

21. And everyone can throw like John Elway.

[Leaning Left]

23. OLD RIFLES!

50 YEAR OLD RIFLES!

check out 4:42

ONLY HOLDS 10 ROUNDS!

[jmg257]

40. What about them? Very nice, but neither fit the AW description.

And no need to have these targeted next. nt

[JoePhilly]

24. Let's just regulate the SALE and PURCHASE.

The 2nd amendment says "keep and bear" ... and it says nothing about the COMMERCE (Sale and Purchase) of "arms".

Regulate the SALE and the PURCHASE.

[onenote]

34. How would you like that approach if it was applied to the First Amendment

The Press has the freedom to print a newspaper. They just can't sell it and you can't buy it.

I'm a strong advocate for gun control, including a ban on the sale of certain types of weapons. But one isn't going to get around the 2nd amendment, as currently interpreted, with word games.

The OP raises a very important, and as yet unresolved legal question: what is the standard for assessing whether a regulation on firearms crosses the line from constitutional to unconstitutional. Here is an interesting debate on the subject: http://www.law.northwestern.edu/lawreview/colloquy/2010/24/

[JoePhilly]

39. I have to PAY for my internet connection. And its regulated.

If I use my internet connection to traffic in kid porn ... I go to jail.

The regulation of COMMERCE is well defined. The Congress can do it.

[onenote]

46. Just because regulation of commerce is permitted,

it doesn't mean that it can be used without limits vis-a-vis protected rights? Regulation of commerce doesn't allow the government to prohibit the sale (or purchase) of a newspaper. Taxation is constitutional, but taxes can't be applied against newspapers in a way that violates the First Amendment (see e.g., Minneapolis Star Tribune v. 460 US 575 (1983).

[JoePhilly]

47. Ever been to an ABC store?

Ever bought Whiskey in a Harris Teeter?

The government CAN decide WHERE you can buy ANYTHING.

Where can you legally buy child porn? You can't!! The 1st amendment does not protect you. Even if you try to publish such porn in a newspaper.

Again ... the Congress can regulate COMMERCE.

That includes, what you buy or sell, when and where, and to whom you sell or buy it from.

[onenote]

48. I think you are missing the point

The point of the OP (and of my posts) is that while the government has authority to regulate guns (just as it has authority to regulate speech or commerce), it does not have carte blanche. Speech can be regulated if it survives the applicable level of scrutiny (e.g., regulation of speech that is viewpoint-based is subject to strict scrutiny; content neutral regulation has to survive an "intermediate" level of scrutiny). The question that the courts have not yet resolved is what level of scrutiny applies to regulation of firearms.

Your example of the regulation of alcohol sales is particularly inapposite. Unlike speech and guns, which are singled out for a higher level of protection under the Constitution, alcohol sales are singled out for not being protected in the 21st amendment, which expressly states:"The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." In other words, as a constitutional matter, no one has any rights with respect to the purchase or sale of alcohol. Regulation of alcohol sales is subject to no scrutiny to determine its constitutionality.

So, simply citing the Commerce Clause doesn't answer the question: what level of scrutiny applies in determining the constitutionality of laws that regulate firearms (or speech) .

[Leaning Left]

27. old rifle

10 shots in 6.5 sec!

[bongbong]

29. Gun porn thread

The Delicate Flowers are hard at work trying to convince Liberals that guns are like gold-plated unicorns, only better.

Their fear of everything in the world is not something i want.

[Recursion]

30. Of course, since it's so easily avoided (just remove the bayonet lug) it's hard to argue standing

Keep in mind, the reason I and many others oppose the AWB is not because it takes people's guns away, but because it doesn't actually restrict guns in any meaningful way but still antagonizes half of the country.

So, within a couple of weeks some gunmaker will have an AR with a sufficiently-modified grip to be legal in NY, and will sell it. No harm, no foul. But also no point to the law.

[Leaning Left]

36. + 100,000,000

You are correct sir! ALL we did was stir the pot!

[Leaning Left]

44. I noticed

That the gun manufacturers stocks went up!
At last count ANOTHER 4.6 MILLION guns are on the street in the past month ALONE!

I have been watching and studying this topic for the past fifteen years.
The gun nuts LOVE IT when things like this happen. They purchase STOCK PILES of guns, ammo, magazines and parts, etc.
AND make a FORTUNE at opportune times like these (SELLING OFF EXTRA STOCK) and instead of purchasing a SEMI AUTO BUSHMASTER they purchase FULLY AUTOMATED WEAPONS!

Military automated weapons are not THAT expensive. Plus a $200 tax stamp and then boom!
NOW they have FULLY AUTOMATIC WEAPONS to be used against US!!!!

http://www.subguns.com/classifieds/?db=nfafirearms&category=All+Items+in+this+Category&query=category&search_and_display_db_button=on&results_format=headlines&website=&language=&session_key=

[jmg257]

52. 1 word..."decaf". nt

[Comrade_McKenzie]

49. Don't really give a damn if it's unconstitutional if it saves lives... nt

[elleng]

51. Summarizing Heller,

The Second Amendment right is not a right to keep and carry any weapon in any manner and for any purpose. The Court has upheld gun control legislation including prohibitions on concealed weapons and possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, and laws imposing conditions and qualifications on the commercial sale of arms. The historical tradition of prohibiting the carrying of dangerous and unusual weapons supports the holding in United States v. Miller that the sorts of weapons protected are those in common use at the time.

The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The total ban on handgun possession in the home amounts to a prohibition on an entire class of arms that Americans overwhelmingly choose for the lawful purpose of self-defense.

http://www.lawnix.com/cases/dc-heller.html