Senator Feinstein's gun bill in light of DC v Heller - Constitutional questions

I don't really know. Heller ruled DC could not outright ban hand guns... because the court determined the people have overwhelmingly chose hand guns for the lawful purpose of self defense.

The 94 AWB was pretty ineffective and banned cosmetic features. You could still buy a semi-auto rifle with pistol grip... even if "AR-15" was specifically named. The fact that it was so ineffective, may have been why it was not bothered with.

What Fienstien is proposing now is in effect a ban on semi-auto rifles and pistols. And those that do own them must register under the NFA and can never transfer them ever. Once those that own them die... that's it. There will be some specifically named things that stand.

I personally do see how that is Constitutional. In that semi-auto weapons have been overwhelmingly used for lawful purposes by the people. I do not think restricting arms to revolvers and bolt action rifles satisfies the purpose of the 2A. The Founders most certainly intended the common man to have modern arms in common use.

I also do not see how it will pass. Maybe she will get a ban on new guns, and I do not see how that will hold if indeed it out right bans semi-auto rifles... but I do not possible see how it passes for current owners not to be able to sell or transfer and that we would have to register under NFA and be required to hold to those  standards.

Thanks for jumping in.

Just to follow up on that.

My understanding is that the semi auto carbine chambered in .223 is the most popular rifle out there.
Is that correct?

If so, is it reasonable to assume that a substantial percentage of owners have them for self defense?
If so, is it reasonable that the platform therefore meets the standard that DC v. Heller ascribes to hand guns for defense?

I'm not a lawyer. Just wondering what an argument might look like if Feinstein's bill passes and then someone has standing to challenge it before the SCOTUS.

Self defense is a lawful purpose... but so is the ability to be in militia. The Miller ruling was basically the one that said no "unusual" weapons. They felt the sawed off shot gun was not a "common weapon" used in militia duty. But a semi-auto rifle is most certainly a weapon in common use for that purpose.

Nobody has cried too much about not being able to own full auto weapons. Miller did not ban full auto, it made the NFA and you had to register them and pay a tax. A law passed in 2010 has effectively banned full auto. But you do not hear much complaining.. except those far right gun owners. I have no doubt if full auto was sold on Wal Mart shelves people would have them... but it seems to me to be a good line for what the "common man" wishes to use. It is not a good home defense mode, and I see no reason to burn through a 1000 rounds on the range in 10 minutes. Semi-auto on the other hand is most certainly what the common man wants, so I would fully expect a challenge.

No, the .223 is not the most powerful round out there.  It is a center fire cartridge, meaning the firing pin hits a primer in the center of the case to ignite the charge and expel the round. 

In comparison with other center fire rifle cartridges, I consider it to be on the lower power side.  See the pic in the link below for an idea of size.  It is number 8.

http://en.wikipedia.org/wiki/Cartridge_%28firearms%29

Yes, a substantial number of people have them for self defense.  I am one of those people, I know dozens more.

Yes the ar15 semi-automatic rifle platform which is the Ford F150 of rifles, is most commonly chambered in .223 or 5.56 caliber and meets the standard set in DC v. Heller. 

Please note that .223 and 5.56 are interchangeable in most chamber designs used in the ar15 platform.  The rounds can almost be considered equivalent.

Now...

The Constitution of The United States is without question, mankind's greatest achievement.  The men who wrote it, our Founding Fathers, were brilliant and the document they created reflects this.  Regardless of what you hear, it is flawless.   

They defined the rules that their, and now our, government had to follow.  They set laws for the government to obey, not for the people to obey.  By adhering to these laws the people would be protected from the government, and from themselves. 

Modern politicians, judges and "other people", out of sheer ignorance, lack of mental capability, unwillingness, or nefarious purposes completely fail to understand or willfully disregard how the document, and therefore our government is designed to work.  They have literally turned it into the exact thing it was designed never to become. 

They have set forth a monster of rules, regulations and laws that no person can fully know or comprehend.  A monster that is completely unmanageable and uncontrollable, that obeys no law, follows no rule, and has no moral guide.

So yes, they will try to ban them, and constitutionality and prior supreme court law will make no difference to them...  

Chris S

Hi and welcome to BT Chris.

I didn't see anywhere in the thread where it was stated that the .223 is the most powerful round. The OP in his second post did ask if it was the most "popular" caliber rifle.

If I missed where someone called it the most powerful my apologies. Knowing the other two posters and their knowledge of firearms, it doesn't sound like something either of them would say.

Don't worry, there will be plenty more facts twisted to make a point before it's all over. there will still be plenty to refute when the cold medicine wears off.

My personal belief based upon re-reading Heller several times over the last few weeks is that a flat out ban on all semi-automatic weapons would not pass constitutional muster.  While the Heller decision talks about "commom use" the majority makes a big point of articulating the idea that the Rights contained in the Bill of Rights protect more than what was in existance at the time of drafting and ratification of the Bill of Rights.  The Court specifically articulates that the Bill of Rights applies equally to modern technology and specifically talks about the First Amendment and modern modes of diseminating information.

Where I think the other potential Constitutional Challenge will come is the, what I will call "surender" portion of the Bill.  The Bill calls for registration of all currently owned "assualt weapons", the Bill does not allow for future transfers of these weapons, and upon the death of the registered owner the weapon must be surrendered to the Government, presumably for destruction.

This is where the Challenge will be, and it will be based upon a property right argument.  I find the argument at least morally compelling, if not necessarily legally compelling.  The argument is that there is no other type of personal property that reverts back to the State upon the death of the owner.  In fact, this reversion is one of the objections to British rule that the Founders had.  Under the monarchy, all property, both real and personal, reverted back to the Crown upon the death of the owner, absent consent of the Crown to allow for passage post death. 

I'm unaware, (because I haven't actually looked) of any other form of legally owned personall property to automatically reverts back to the state upon the death of the owner of that property.

Again, I think if the Feinstein Bill is passed, this will be one of the challenges, and I have no idea how it will work out.  

I wonder if it could be argued that the estate tax, while of course not specifying a "type" of property, is something that meets the above.

The issue this time around will be what level of scrutiny will be applied to laws which infringe on the right of people to keep and bear arms, which was not settled in either the Heller or McDonald cases.  Pro gun rights advocates will argue for a strict scrutiny standard which would keep the Second Amendment in line with the other amendments dealing with fundamental rights (1st-8th).  Those defending the laws will argue for some heightened scrutiny to be applied.  These arguments were made in Heller, but SCOTUS found that the D.C. laws would not pass muster under any level of scrutiny, thus they punted on the issue of deciding the proper standard.

That's something that caught my attention when I read DC v Heller.

If the 2nd Amendment only applies to muskets, as many gun control advocates claim, then the 1st Amendment might only apply to hand set type broadsides in its protection of freedom of the press. To follow that logic, the Founders didn't have electronic media, therefore electronic publishing of any sort is not protected under the 1st amendment.

I'm guessing that many who claim that the 2nd Amendment only protects the right to keep and bear a musket don't actually know what a musket is or how it was used in the Revolutionary War.

If he were alive today, I wonder if Benjamin Franklin would have still owned a printing shop or would have opted for owning a cable news channel.

There are also a lot of people who feel the reasoning in Roe v Wade was pretty flawed.  What difference does that make?

Heller's the law of the land and a precedent until something drastic changes it.

I agree that many people find the majority opinion in Heller flawed, however I think that many of them that find fault with the majority opinion are engaged in a type of intelectual hypocrisy.  It never ceases to amaze me that by-in-large those individuals that feel the Heller majority opinion is flawed tend to be "liberal" and tend to find no fault in the line of cases involving "privacy rights".  

However, from a purely legal argument stand point it seems difficult to argue that there is no individual right to keep and bear arms when, at a very minimum, some form or notion of some type of right to keep and bear arms is specifically mentioned in the Constitution.  However, the notion of "privacy" is not mentioned, anywhere.  In Griswold Justice Douglas had to "find" the "right of Privacy" in the "penumbra" of rights contained in the Bill of Rights, Justice Goldberg relied on the 9th Amendment's other  rights "retained by the people", and Justice Harlan found it in the 14th Amendments liberty clause.

It's interesting that some are offended by what they call the "creation" of an individual right in the Heller case but have no problem with the notion of the Right to Privacy, a right that is not mentioned in the Constitution, anywhere...  I keep hearing liberal media members talking about Heller "creating an individual right to bear arms where none existed before."  and they say this with such adement disgust.  And yet, there is no such discussion regarding the notion of a right to privacy, a right that appeared nowhere prior 1965's Griswold decision.

I submit that this is intelectual hypocrisy.  At it's core, the bottom line is the personal belief of the the individual discussing the issue without regards to any actual constitutional protections.  By that I mean simply, they like the idea of the right to privacy and everything that flows from it so they find no fault with the privacy right cases (Griswold, Roe v. Wade, Stanley v. Ga. ect), and the contrary is true.  They are anti gun ( in some cases) and pro-gun control and thus find fault with Heller.

It's also intelectual hypocrisy because these same pundits keep saying over and over that they doubt the founding fathers intended to protect or foresaw the types of weapons we have now.  They use this argument as a means to suggest that the 2nd Amendment only protects the types of weapons envisioned at the time of the drafting of the Bill of Rights.

This too is intellectualy hypocrisy because they do not extend this rigid interpretation to other rights found in the Bill of Rights.  I am confident that Jefferson did not envision instantanious visual disemination of speech and ideas, and yet speech is protected as equally when conveyed via electronic media as by print.

In short it's backwards reasoning.  It isn't taking the opinions on their merits, it's analyzing the opinions based upon what the person thought the outcome should have been based upon their own world view.  An opinion contrary to their world view is faulty, regardless of what the opinion actually says or how the Justices arrived at the opinion.

This type of backwards analysis is dangerous to a society that is supposed to be based upon the principles of law.

There is a simple answer for those that don't agree with the Heller decision or on a moral or ethical or pragmatic level feel that there is no need for guns in our modern society....Repeal the 2nd Amendment.  That solves any and all Constitutional arguments...at least on the Federal Level.  (Haven't even gotten to the notion that states can afford their citizens additional rights not found in Federal law.  A state can't afford less rights but can afford more, and something like 30 States have specific personal right to bear arms in their State Constitution...but that's a fight for another day)

I agree that Griswold v CT, the ruling regarding contraception,  opened the floodgate that led to Roe v Wade. There may be a natural right to privacy, I don't know, but it no where appears in the Constitution. 

Robert Bork gave a brilliant seminar on Griswold during his 1987 confirmation hearings.
Too bad Senator Kennedy wasn't listening. 

Here's a question: Is the right to keep and bear arms a natural right and thus inalienable?

The 2nd Amendment reads:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The phrase, "shall not be infringed" seems to indicate that the right already exists.  If so, that would seem to mean that it's an inalienable natural right.

If so, then theoretically is it even possible to rescind an amendment in the Bill of Rights that is there just to codify and clarify an already existing natural right?

Just as many people think RvW was flawed and have been challenging it and chipping away at it over the years, it will be interesting to see the parts of Heller people think are flawed challenged and upheld or reversed in the years to come.  I have doubts that an assault weapon ban could even be passed, but Heller explicitly does not protect all weapons so it would be interesting to see where they draw that line.

I think this is how the entire Bill of Rights reads.  The protection is from government infringement on the rights, not that the rights are bestowed by the government.

EDIT: Looks like A6 is the exception to the above.

I thought this was already done for full auto weapons. That the new law was that they could not be transfered after death, effectively banning full auto weapons after the current owners die. But now I can not find the law that states that. I thought I saw it was changed in 2010.

I am not so worried about Feinstein's bill in it's current form as I doubt it will even be taken up. However I am worried about what ole Obama will try to do with "executive order" that will take a while to undo. 

That is what I can't fathom... the BoR is for the individual. It restricts the power of government. Our Republic is founded on individual freedom... and yet gun control advocates take the EXTREME stance that the 2A was a "collective" right... absolutely mind boggling. Then when Heller rules the 2A does exactly mean what plain English says it does... their thinking is flawed. WTF???

I never understood how anyone could twist something so simple to say that the 2A was a collective right "given" to militias... when the entire BoR s was about the People, which are made up of individuals.

Also, while we talk of Federal law, and the 2A limits Federal power to restrict the 2A, and everyone wants more Federal restrictions to 2A.... for the last decades most States have relaxed gun laws, and granted more freedom for firearm owners. Montana took the extraordinary measure to say that and Class 3 weapon produced in Montana owned by their citizens and stayed in Montana did not fall under the NFA.

Heller did not say DC could not regulate fire arms, just that they could not effectively ban them. The Federal government attempting to ban semi-auto as Fienstiens bill does I think is overstepping Federal power.

I do not believe that Obama will do anything substantial in office this includes coming after our firearms. If you look at his past votes for gun control he never votes strongly one way or the other just like most of his votes. He will stay the middle path never straying too far one way or the other.

It's funny you say that... I think things are a little different and there is strong support for something to get done. But I can't help think that Obama has been pretty ineffectual on most things and he has a full plate with fiscal problems. I guess we will see.

But there are plenty others that want to do something. we shall see I guess. This bill is ridiculous in scope, but I suspect "something" to pass.