SCOTUS turns down 2 2nd Amendment appeals from NRA

[Tom_Tildrum]

Interesting that one of the cases was “NRA v. McCraw.” I wonder if the defendant’s first name is “Quickdraw”?

[Bone]

The constitution controls there. It’s not an issue I’m very concerned about, but for the sake of consistency I would support amending it to bring the age of majority consistent across all functions. Apparently the house of representatives requires less experience and age than a member of the Senate. It will never happen of course and there’s no lobby that really cares to push the issue.

If holding elective office is the only anomaly with regard to the age of majority I think that would be progress.

[Mdcastle]

@Bone

It’s not just underage citizens. It is those that are age 18 or greater but less than 21.

There should be one age of majority. The same for signing contracts, enlisting in the military, voting, drinking, and firearm ownership.

It’s too bad, I thought the NRA case a good one for the purchase of firearms. The carry case should wait until purchase was protected to build on that. In CA, an 18 year old may not purchase a pistol, but they can legally own one. An inter-familial transfer is required and the pistol be a gift.

And driving and smoking. I don’t care what age, but pick one. We trust teens with a vehicle weighing thousands of pounds that can go 100 mph, but not a beer?

[Ethilrist]

@Bone

Dont forget POTUS at 35!

Well, if you’re old enough to nuke Russia, you’re certainly old enough to buy a handgun.

[Damuri_Ajashi]

@Bone

My take is that I don’t think the theory that because some arms are allowed (long guns) it is permissible to restrict other arms (handguns).

The constitutional question of whether it is allowable to restrict weapons to this age group isn’t mooted by allowing long guns. If there exists a constitutional protection for arms, it should include both long guns and handguns. If there is no constitutional protection for arms in this age group, then prohibiting handguns, or long guns, or both would be permissible.

I am also a bit agnostic on this issue.

Would it matter at all if of gun murders committed by law abiding citizens were young men with handguns because handguns are portable and concealable?

Can’t we restrict rights if there is a logical and rational link between the restriction and some compelling state interest?

@Bone

So shotguns, AR-15 pattern rifles, AK-47 pattern rifles, saigas, single shot AR-pistols, and a host of other weapons. The restriction on pistols makes less sense in the grand scheme of firearm purchase.

I think the reverse may be true, restricting long guns is stupid if you are permitting handguns but considering the concealability of handguns and their prevalence in gun crimes, I could see some more restrictions on handguns than long guns.

@Bone

The constitution controls there. It’s not an issue I’m very concerned about, but for the sake of consistency I would support amending it to bring the age of majority consistent across all functions. Apparently the house of representatives requires less experience and age than a member of the Senate. It will never happen of course and there’s no lobby that really cares to push the issue.

If holding elective office is the only anomaly with regard to the age of majority I think that would be progress.

I am also not terribly concerned about this particular issue but I would note that some very pro-gun states have this sort of restriction on handguns.

[Bone]

@Damuri_Ajashi

I am also a bit agnostic on this issue.

Would it matter at all if of gun murders committed by law abiding citizens were young men with handguns because handguns are portable and concealable?

Can’t we restrict rights if there is a logical and rational link between the restriction and some compelling state interest?

Enumerated fundamental rights should not be subject to interest balancing. This is from the Heller majority (and again drawing analogues to the first amendment):

Justice Breyer moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Post, at 10. After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. **The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. **Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would notapply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which Justice Breyer would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.

(my bold)

The answer is no to interest balancing.

I think the reverse may be true, restricting long guns is stupid if you are permitting handguns but considering the concealability of handguns and their prevalence in gun crimes, I could see some more restrictions on handguns than long guns.

This only makes sense if you are engaging in interest balancing. As above, this is not appropriate. As such the restriction on handguns while permitting long guns doesn’t make sense. Either all arms should be restricted, or none (within the scope of arms generally available to purchase). A person either has the right to arms, or does not. Once they do, the type of arm should not be subject to age based restrictions under the guise of serving some other purpose. The purpose is irrelevant when talking about fundamental rights.

I acknowledge the drunk driving exception to the fourth amendment and find it abhorrent.

I am also not terribly concerned about this particular issue but I would note that some very pro-gun states have this sort of restriction on handguns.

Apparently the time for successful litigation is not yet ripe.

[Really_Not_All_That_Bright]

@Falchion

I can’t think of another example of requiring someone be 21 to exercise a constitutional or fundamental right (I thought maybe marriage and it looks like that might be true in Mississippi). What are you thinking of?

Voting, at least until 1971.

[Really_Not_All_That_Bright]

@Bone

Enumerated fundamental rights should not be subject to interest balancing. This is from the Heller majority (and again drawing analogues to the first amendment):

And yet the Heller majority continued to find that reasonable restrictions are permissible. That is interest balancing.

@Falchion

I can’t think of another example of requiring someone be 21 to exercise a constitutional or fundamental right (I thought maybe marriage and it looks like that might be true in Mississippi). What are you thinking of?

Voting, at least until 1971.

[Bone]

@Really_Not_All_That_Bright

And yet the Heller majority continued to find that reasonable restrictions are permissible. That is interest balancing.

Not quite. If you could clarify what restrictions you’re talking about it would help. A restriction or regulation itself is not necessarily borne of interest balancing, especially to the core of the right.

In any case, the opinion was silent on those items (restrictions and regulations) as they were not the question being addressed.

[Really_Not_All_That_Bright]

It was silent on the specifics, but it was pretty clear that it wasn’t intended to overturn all restrictions on gun ownership.

@Scalia

The Constitution leaves the District of Columbia a variety of tools for combating [the problem of handgun violence], including some measures regulating handguns, see supra, at 54–55, and n. 26.

The decision is hardly a model of clarity (or logic), but it seems pretty obvious that DC’s interest in preventing gun violence is sufficient to allow for “some measures” of regulation. That’s interest balancing.

[Bone]

@Really_Not_All_That_Bright

It was silent on the specifics, but it was pretty clear that it wasn’t intended to overturn all restrictions on gun ownership.

I agree.

The decision is hardly a model of clarity (or logic), but it seems pretty obvious that DC’s interest in preventing gun violence is sufficient to allow for “some measures” of regulation. That’s interest balancing.

I re-read my post and I wasn’t as clear as I had hoped. What I meant to say was that restrictions that result in the destruction of the core of the right are not subject to interest balancing. The absolute prohibitions on individuals aged 18, 19, and 20 from purchasing handguns (the most popular weapon chosen for self defense) results in the destruction of the right for those individuals in that age group.

The only way that the restriction on this age group can be allowed would be to determine that the 2nd amendment doesn’t apply to these individuals. My point was to respond to **Damuri’s **question regarding the absolute restriction on purchase based on a compelling state interest. In this regard, as long as the 2nd amendment covers individuals in this age group, the answer is clearly no because interest balancing can not be used to countenance the destruction of the core of the right.

Interest balancing can be used in other areas, as long as they do not destroy the right.

I would also note that while the opinion does mention the existence of other measures for firearm regulation that are available, it does not follow that they are opining that DC’s interest in preventing gun violence is sufficient to allow for “some measures” of regulation. Those specific items are not addressed and therefore the Heller opinion leaves intact anything in that arena. Leaving those items intact does not confer constitutional blessing when those regulations were not among the questions being presented.

Consider if Dick Heller was a 20 year old when his lawsuit began. Would the result be different? I think they probably wouldn’t have granted cert. But if they had, the only way they could rule and preserve the ban on 18, 19, and 20 year olds and be consistent with the existing ruling would be to carve out that age group from 2nd amendment protections. They couldn’t very well say that the 2nd protects handguns in the home when an adult living in the home is prohibited from purchasing handguns.

This is why I think the NRA vs. BATFE was an interesting case and was hoping it would proceed. Heller tells us that handgun ownership in the home is protected. Banning a group from purchasing handguns destroys the core of the right. Therefore, either that age group doesn’t’ enjoy the 2nd amendment, or the prohibitions on those individuals would be unconstitutional. That’s my take. Hopefully future litigation will flesh that out.

I only have a passing interest in the age restrictions however. I’m more interested in carry and am looking forward to the cert petition being granted for Drake.

[Really_Not_All_That_Bright]

…restrictions that result in the destruction of the core of the right are not subject to interest balancing.

I understood what you meant, really. That’s Scalia’s opinion, but it’s pretty well settled that interest balancing is always necessary. He engages in it himself all the time, in fact; in Florence he held that jails could strip search everyone, whereas in Maryland v. King he opined that they couldn’t take cheek swabs. Two cases a term apart, and both defendants were within the scope of Fourth Amendment protection. He distinguished the two cases based on the government interest involved (jailhouse safety versus solving crimes). Interest balancing.

Anyway, there’s no way he can distinguish an 18 year old from a 17 year old for Second Amendment purposes, so he’d have to engage in interest balancing or hold that just about any age restriction is inappropriate.

[Bone]

I’m not familiar with those cases (I always like interesting cases to read when I’m at lunch, so thanks for that) but at a cursory level, are those instances consistent with the rationale that the core of the right is being destroyed? The protection is against unreasonable search - the difference could hinge on the reasonableness, not interest balancing. The 2nd is not so grey.

I’ll read up on those and see if I want to take that back. It could just be that Scalia isn’t consistent.

[Damuri_Ajashi]

@Bone

Enumerated fundamental rights should not be subject to interest balancing. This is from the Heller majority (and again drawing analogues to the first amendment):

(my bold)

The answer is no to interest balancing.

This only makes sense if you are engaging in interest balancing. As above, this is not appropriate. As such the restriction on handguns while permitting long guns doesn’t make sense. Either all arms should be restricted, or none (within the scope of arms generally available to purchase). A person either has the right to arms, or does not. Once they do, the type of arm should not be subject to age based restrictions under the guise of serving some other purpose. The purpose is irrelevant when talking about fundamental rights.

So how do you feel about the prohibiting felons from owning firearms? Doesn’t who stole a car in their youth deserve the same ability to self defense as anyone else? Haven’t we destroyed the second amendment with respect to the individual? Are you saying that it is OK, because we prohibit ALL felons from owning ALL firearms? Could we prohibit all felons from owning just handguns but not long guns because we want them to be able to own shotguns for self defense?

The reason I used the phrase compelling state interest is because it is the standard used in strict scrutiny. If the courts apply first amendment scrutiny to the second amendment (which I think is the right answer) then the standard would be even lower.

“In order to overcome the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest. This should be contrasted with strict scrutiny, the higher standard of review which requires narrowly tailored and least restrictive means to further a compelling governmental interest.”

So yeah, I think you can bifurcate rights and given enough state interest in restricting a right, they should restrict as little of that right as they need to achieve their stated purpose. So yeah, I think reasonable restrictions on age for ownership of handguns is constitutional

[Bone]

@Damuri_Ajashi

So how do you feel about the prohibiting felons from owning firearms? Doesn’t who stole a car in their youth deserve the same ability to self defense as anyone else? Haven’t we destroyed the second amendment with respect to the individual? Are you saying that it is OK, because we prohibit ALL felons from owning ALL firearms? Could we prohibit all felons from owning just handguns but not long guns because we want them to be able to own shotguns for self defense?

I’m fine with felons losing their 2nd amendment rights. I’m also fine with there being a process to regain those rights in certain limited circumstances. I have very little sympathy for felons with regard to 2nd amendment rights.

The reason I used the phrase compelling state interest is because it is the standard used in strict scrutiny. If the courts apply first amendment scrutiny to the second amendment (which I think is the right answer) then the standard would be even lower.

“In order to overcome the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest. This should be contrasted with strict scrutiny, the higher standard of review which requires narrowly tailored and least restrictive means to further a compelling governmental interest.”

The standard for strict scrutiny is not merely a ‘compelling governmental interest’. The key that distinguishes it from other levels of scrutiny and what makes it so difficult to overcome is that the action must be narrowly tailored and the least restrictive. Relying on a compelling governmental interest without simultaneously satisfying the other requirements makes strict scrutiny as toothless as rational basis. I believe you know this since you mention it in the next paragraph, but your line of reasoning here doesn’t speak to these other requirements.

If you support age based restrictions because of a compelling government interest in reducing handgun violence (since long guns are perfectly kosher) to those of ages 18, 19, and 20, what logical distinction is there between those age groups and others? Handgun violence is also high in people ages 21-30. Handgun violence is the overwhelming form of gun violence in all age groups. Couldn’t an age limit of 75 be supported under the line of thinking?

We know that Heller tells us that handguns are the most popular choice for self defense in the home. They are constitutionally protected. Banning them outright is a violation of the 2nd amendment. As stated in Heller, this type of ban would not be upheld under ANY level of scrutiny. Those facts can not be in dispute. The only way that a ban of handgun purchase for those aged 18, 19, and 20 withstands judicial scrutiny is if those individuals do not enjoy the protections of the 2nd amendment.

So yeah, I think you can bifurcate rights and given enough state interest in restricting a right, they should restrict as little of that right as they need to achieve their stated purpose. So yeah, I think reasonable restrictions on age for ownership of handguns is constitutional

This exact statement could have been made by the most ardent gun control advocate.

An analogue could be - since 18, 19, and 20 year olds are more likely to commit crimes, there is a compelling state interest to deny them due process, the right to counsel, or a trial by jury (where applicable). Whacky ideas like this are ridiculous on their face - but somehow when applied to the 2nd amendment people find it less whacky.

[Learjeff]

@Bone

There should be one age of majority. The same for signing contracts, enlisting in the military, voting, drinking, and firearm ownership.

And driving, and age of consent? (Admittedly, driving isn’t a right.)

I don’t agree with your assertion that there should be one age of majority.

@Bone

Enumerated fundamental rights should not be subject to interest balancing.

Very illuminating, thanks for that (and to those who subsequently pointed out exceptions.)

[Really_Not_All_That_Bright]

Driving, certainly. The US is virtually unique in allowing people under 18 to drive unsupervised.

[kanicbird]

@Bone

It’s not just underage citizens. It is those that are age 18 or greater but less than 21.

There should be one age of majority. The same for signing contracts, enlisting in the military, voting, drinking, and firearm ownership.

It’s too bad, I thought the NRA case a good one for the purchase of firearms. The carry case should wait until purchase was protected to build on that. In CA, an 18 year old may not purchase a pistol, but they can legally own one. An inter-familial transfer is required and the pistol be a gift.

What about people under 35, another restricted class, unable to run/serve as President of the US and enshrined in the Constitution, yes we are very good at drawing hard and fast arbitrary lines that have no basis in reality for a individual.

[Ranger_Jeff]

I was annoyed when I couldn’t buy a beer at the airport bar in San Francisco on my way home from Nam. I wasn’t old enough to drink.

[Bone]

@Learjeff

And driving, and age of consent? (Admittedly, driving isn’t a right.)

@kanicbird

What about people under 35, another restricted class, unable to run/serve as President of the US and enshrined in the Constitution, yes we are very good at drawing hard and fast arbitrary lines that have no basis in reality for a individual.

RT also brought this up in post #20. I addressed this in post#22.

@Really_Not_All_That_Bright

I understood what you meant, really. That’s Scalia’s opinion, but it’s pretty well settled that interest balancing is always necessary. He engages in it himself all the time, in fact; in Florence he held that jails could strip search everyone, whereas in Maryland v. King he opined that they couldn’t take cheek swabs. Two cases a term apart, and both defendants were within the scope of Fourth Amendment protection. He distinguished the two cases based on the government interest involved (jailhouse safety versus solving crimes). Interest balancing.

I read these opinions and I fully admit I may be missing something.

It seems like the search in Florence is similar to a vehicle search incident to arrest. Once lawfully arrested and placed into jail you are subject to search in the same fashion. The 4th amendment isn’t implicated because that is a reasonable search. Accordingly there is no interest balancing occurring while on one side we have the 4th amendment protections and the other we have something like, jail integrity or prisoner safety. It’s simply the case that the search is reasonable and therefore the 4th amendment is not implicated.

In King, Scalia was against the cheek swab DNA gathering because it was a search. There he argued there was no reason to take the swab except to satisfy some general crime solving dragnet. The 4th amendment was implicated because he viewed that as unreasonable.

I don’t find those inconsistent, but like I said, I could be missing something. Please enlighten me.