California Microstamping

[Damuri_Ajashi]

@Measure_for_Measure

A list of 1 would be acceptable, if the state could show that the particular weapon was sufficient to give the firearm owner adequate self defense. The underlying issue isn’t number: it is scope.

Heller makes it clear that limiting consumer preferences can be a limitation on the exercise of the second amendment, otherwise DC could just have pointed to the fact that you can own a shotgun in your home and called it a day. Unnecessarily restricting choice might be enough to run afoul of the second amendment.

You could argue that a gun roster of 700 limits free expression easier than it limits one’s ability to defend oneself. But that absurd argument wouldn’t be a 2nd amendment defense.

Is it such an absurd argument when the guns on the roster are specified by color? So a glock 17 in black or OD green are OK but if you try to get the same one in desert tan then you are breaking the law. I think the list includes the right handed version of some guns but not the left handed version.

The court did address them though. Heller stated explicitly that regulation of firearms were acceptable. And the constitutional precedents weren’t limited to the first amendment. Check out the syllabus: “Like most rights, the Second Amendment right is not unlimited.” It’s saying that the 2nd Amendment doesn’t have boundless scope and later on they argue, “Heck, the first amendment doesn’t either!” That analogy has a rather different flavor than the one you present.

Sure regulations were acceptable but obviously not ALL regulations are acceptable. Its not enough to say SOMER regulations are acceptable so this one must be as well.

[Damuri_Ajashi]

@Measure_for_Measure

It’s easy to imagine a decision stating that once you’ve established that the roster provides sufficient means of self defense, that 2nd amendment concerns don’t apply (though other amendments would).

Heller was about a prohibition against handguns in a district where shotguns were legal. I suspect a similar judgment would have been reached if the case was about shotguns in a jurisdiction where only handguns were permitted. The right to keep arms seems to include considerations of preference and choice.

So yes, I maintain that the analogy between “banning all but 700 books” and “Limiting oneself to 700 weapons” is facile. Because the former is inconsistent with free expression, while the latter could be wholly consistent with the right to self defense.

Lets say that California decides to implement a registration requirement for any books to be sold in the state. All it has to do is meet some basic requirements like not including hate speech that promotes violence. Pretty much everyone that submits their book for registration (along with the $200 fee) gets it passed but the standard for meeting the requirements is based on some guy sticking his head into the hallway and asking a passerby if they think a particular passage is hate speech that promotes violence. Would that be OK?

Heller declared that there is a constitutional right to bear arms for self defense. It did not establish a right for gun collectors to practice gun fetishism. That concern is not yet protected and shouldn’t be: maintaining that it is a right is risible.

And yet Heller was at least to some extent about firearms preferences and choices. DC already permitted residents to own shotguns.

[Damuri_Ajashi]

@septimus

Thanks for bumping this thread. I’m always amused to learn how so many right-wing blowhards are obsessed with GUNS GUNS GUNS !!! Is it about protecting Granny when Obama comes to take her to the death camps? Are you guys Truthers and Birthers too? Is Elvis still alive?

Or is just your bloated amygdalas? One Doper admitted he was afraid to travel overseas because he wouldn’t be allowed to pack his Glock. Even the Brickhead “needs” a concealed-carry permit. So he can “stand his ground” from the bailiff if the Judge arrests him for contempt?

Facts?? :eek: You think facts have any relevance for these idiots?

You’re making your side look bad.

[Bone]

@Damuri_Ajashi

Heller was about a prohibition against handguns in a district where shotguns were legal. I suspect a similar judgment would have been reached if the case was about shotguns in a jurisdiction where only handguns were permitted. The right to keep arms seems to include considerations of preference and choice.

I don’t disagree with this, but it would be more clear to state the actual language in Hellerthat seems to shed light on the appropriate test (my bold):

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

This passage seems to indicate two things.

First - those arms that are implicated by the 2nd amendment are those that are in common use. This is not to say that common use arms cannot be impacted by laws or regulations, just that this is the criteria for which to determine if the 2nd amendment is implicated in the first part of the two part test. In the case of Pena vs. Lindley, many of the firearms that are banned are in common use so the district courts conclusion that the 2nd isn’t implicated is further weakened. This is also why it is important that gun rights advocates and enthusiasts ensure that as many weapons as possible are purchased and owned. This supports the common use test.

Second - laws impacting weapons that are both dangerous AND unusual fall outside the scope of the 2nd amendment. I think untested 3D plastic guns may fall into this category. If manufactured incorrectly they could be dangerous and they are certainly unusual currently. I do not believe they are in common use either.

The converse of both of the above is that if a weapon is not both dangerous AND unusual, AND it is in common use, then it falls under the protection of the 2nd amendment. Restrictions or laws impacting these weapons should be subject to heightened scrutiny. Obviously this is most often discussed in terms of firearms but any weapon that a person may carry should also fall under these auspices.

I will say that this test has not been applied in this fashion at SCOTUS, or at the circuit level. Various victories have mostly involved total bans so my reading is based on the language in Heller. This test has also not been ruled out but IMO the language in Heller is clear that this would be the test. That lower courts have disregarded Heller to the extent they have is unfortunate - it means further litigation.

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Another key passage that you are referring to about weapon choice is as follows:

It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed.

Since the court identified handguns to be the quintessential self defense weapon, availability of other weapons was not sufficient to support a handgun ban. I’m not sure if the logic could be applied in reverse if handguns were allowed and long guns were banned. The stronger line of attack if that were the case would be my section above, about common use weapons that are not dangerous and unusual.

[yoyodyne]

One could argue that all weapons are dangerous, and that left-handed weapons are unusual and not in common use. In fact, no new model of gun is in common use by definition, and therefore can be banned.

[Eiffel]

@yoyodyne

One could argue that all weapons are dangerous, and that left-handed weapons are unusual and not in common use. In fact, no new model of gun is in common use by definition, and therefore can be banned.

One could also argue that that is obviously not what the Supreme Court intended when they said “dangerous and unusual.” For one, they used those two words together, not separately, in reference to weapons that are clearly more dangerous than the norm, and furthermore are unusual.

When the Supreme Court referred in Heller to firearms being in common use, they were never talking about a specific model or make of firearm. Rather, they were talking about a general classification, handguns, specifically. The idea was that people should have access to firearms that fit in a category that is commonly used.

Let us consider the hypothetical situation of Bob. He has a mysterious ailment that prevents him from using any of the handguns legally available on California’s roster. A custom gunsmith can build him a gun he can use. While this custom gun will no doubt be unusual, and furthermore, not in common use, preventing him from owning it will completely deprive him of the ability to own a handgun, which appears to be unconstitutional according to Heller.

[Eiffel]

Sorry, my reasoning above was slightly fuzzy. SCOTUS is not explicitly clear on whether they mean specific firearms in common use, or a commonly used type of firearm. However, when they discuss Miller, it seems to me that considering whether particular makes and models of firearms are “in common use” is a non-issue. The example provided, of militia-men bringing firearms “in common use at the time,” doesn’t seem to refer to specific models of firearm. This is supported by another quote from Miller, “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." Note “of the kind in common use at the time.” It seems pretty clear that by “kind,” they did not mean specific makes or models of firearm, but rather a general class, like long arms, pistols, etc.

At the time, firearms were not produced in modern factory settings, with a great deal of specificity as to what model of gun each one was. In that historical time-frame, firearms were made by skilled laborers, and variation was notable between firearms from the same maker, never mind the variation between those of two makers. The only classification available historically was the general type of firearm (musket, carbine, etc.), with perhaps some minor consideration for caliber or operating mechanism.