good news & bad news on CA gun control bills...

[ChaoSS]

Apparently. Let me go look that up.

Ok. I looked it up. This may be splitting hairs a bit, but I think there's a difference between that and what the first amendment says. It says that they can make no law respecting an establishment of religion. It does not protect the right of an individual to practice their religion in any way they choose. I think it is an important distinction, as they are not allowed to require me to follow a religion, or ban me from believing what I want, or practicing what I want, to the extent that it does not infringe on the rights of others. But I do not think that banning certain religious practices is a "reasonable restriction" on the first amendment, but rather, that the first amendment doesn't truly protect your right to practice as you will.

 

[9mmepiphany]

That same argument is what is being used to limit CCW. They are saying that limiting the ability to CCW is a "reasonable restriction" while not infringing on your right to own guns.

The limit on magazine capacity and semi-automatic rifles is based on the same exception.

The case protects the right to practice (own guns) but limits how you practice (CCW) it.

 

[Zoogster]

9mmepiphany said:

That same argument is what is being used to limit CCW. They are saying that limiting the ability to CCW is a "reasonable restriction" while not infringing on your right to own guns.

The limit on magazine capacity and semi-automatic rifles is based on the same exception.

The case protects the right to practice (own guns) but limits how you practice (CCW) it.

Perhaps, but the basis and logic given by the founders and discussed at length as the basis for the right become critical in differentiating such restrictions.
The right to freedom of speech was so people could communicate ideas and beliefs freely etc for example.
This was in contrast to many kingdoms and nations of the time that prohibited various books, ideas, etc

However the right to keep and bear arms was largely to pose a threat to tryanny from government and decentralize effective force.
Keeping government from having a monopoly on effective force as governments often seek to secure power and limit threats by creating a monopoly on force.
Clearly the purpose is null and void if the type of arms is limited to 19th century technology in the 21st century.
Clearly the intent was to insure weapons that could actually pose a threat to military forces foreign and domestic was the intent.
However even if we neglect to consider the military and look merely to the most basic law enforcement we see they are typically equiped with semi-automatic rifles.
So a restriction on citizens restricting the very type of firearms all armed portions of government consider a minimum individual standard goes so far beyond nullifying the entire purpose of the 2nd Amendment that you might as well cross it off the Bill of Rights.

The 2nd was not to let people have thier own guns for recreation or use against common criminals. At the time that was considered a basic right and even stating it not seen as required. The colonists and the citizens in England could both do so and that was not a difference between them.
Defending yourself from common criminals was a no brainer to the founders and citizens in England and many other places at the time as well. They didn't even consider places like England would restrict that like they have today.
However a right to arms capable of resisting tyranny was something less common and unique and so was seen as necessary to state.



When considering whether a restriction is valid the intent and history of that right becomes important. Not merely a comparison of restrictions on another right.

 

[ChaoSS]

I wouldn't care so much about no concealed carry, given the right to open carry without the cops harassing you, or, in California's case, arresting you.

But banning certain weapons certainly is an infringement on the right to keep and bear arms.

And let's not forget the second part of that is bear arms. Not just keep them.

 

[9mmepiphany]

When considering whether a restriction is valid the intent and history of that right becomes important. Not merely a comparison of restrictions on another right.

I don't disagree.

The statement was in reference to the statement that the practice of religion hadn't even been restricted...it has..and it isn't splitting hairs

 

[Frank Ettin]

...It does not protect the right of an individual to practice their religion in any way they choose...

Well, the First Amendment does say (emphasis added):

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;...

Some might be inclined to say that "free exercise" means exactly practicing your religion however you choose.

But be that as it may, the standards for evaluating regulation of constitutionally protected rights are "strict scrutiny" and "intermediate scrutiny". Strict scrutiny is a three prong test:

• The regulation must be justified by a compelling governmental interest; and
  
  
• The law or policy must be narrowly tailored to achieve that goal or interest; and
  
  
• The law or policy must be the least restrictive means for achieving that interest (i. e., there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive).

To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.

Strict scrutiny has generally been applied to the core issues of constitutionally protected rights, e. g., political speech in the First Amendment context. Intermediate scrutiny has been used for non-core issues related to fundamental rights, e. g., commercial speech in the First Amendment context.

A less stringent level of scrutiny, "rational basis", has apparently been taken off the table for Second Amendment issues by some language in McDonald.

Application of those principles, i. e., strict scrutiny/intermediate scrutiny and core fundamental rights/non-core fundamental rights, have been used to evaluate and sustain the regulation of rights protected by the First Amendment, as I outlined in post 21. Those principles will also be applied to evaluate regulation of rights protected by the Second Amendment. What sorts of regulations of the RKBA will be sustained by that process remains to be seen.

 

[316SS]

Presuming that self-preservation is a compelling government interest, then the 2A is no protection whatsoever against government tyranny, at least in a legal sense.

I agree with Justice Scalia: "Strict scrutiny, intermediate scrutiny, blah blah blah blah. That’s just a thumb on the scales."