What post Heller challenges to Federal Law?

[gbran]

We don't have incorporation yet, but I hear very little about challenges to federal laws. Consider the poor saps in DC who can't go to neighboring states to buy handguns because fed law requires they be transfered thru their state or local FFL, of which, I understand the few that exist aren't doing transfers.

This is not a state law, it is fed (Title18, U.S. Code, Sections 922). Why the hell do we even need this law? Especially when you consider that we are still required to have background checks.

So, if the RKBA is not incorporated and the 2A only applies to the federal gov't, why aren't we challenging them.

What other federal laws would be reasonable to challenge now?

 

[Hypnogator]

Why the hell do we even need this law? Especially when you consider that we are still required to have background checks.

Excellent point. The law was passed in 1968, long before there was a requirement for a background check. I guess its intent was to make sure "strangers" from out of state didn't come in and buy guns without their local authorities knowing what they were up to.

Nowadays, with background checks required, anyone should be able to buy a gun anywhere.

 

[everallm]

With the current POTENTIAL legislation in Congress to ram the Heller finding down DC's throat there is a federal change. One portion would allow DC residents to purchase handguns out of state in VA or MD.

If the Federal government says it is permissable for DC residents to buy pistols out of state in Virginia or Maryland, then it follows that it is permissible in the other direction, as and when a real FFL opens in DC.

Since this is accepted, it is a fully defensible case that triangle trade is permissible, VA to MD and MD to VA.

Since transactions between these 2 is OK, and this is federal law it is legally indefensible to not apply to the same law to the remaining 48 states.

This provides the same incremental whittling away at firearms control laws Heller has initiated and could be used as a significant lever in the fight for incorporation of 2A.

 

[XD_fan]

Heller was about Keeping Arms. We haven't played the Bear game yet. Nor have we addressed what is capricious.

Once incorporation is a done then all the other crap can be attacked.

 

[AntiqueCollector]

Gun free school zones law.

 

[femoralis]

The part of the GCA 1968 that bans the importation of non-sporting arms may be a good target. It bans the importation of commonly owned firearms that are made specifically for self-defense, such as short-barreled pistols and shotguns that hold more than 5 rounds of ammunition.

 

[Bartholomew Roberts]

One reason there have been few challenges to federal laws post-Heller is that the state laws are much more onerous and make better targets for a Civil-Rights style litigation campaign. First you need incorporation though, so you can apply Heller to the states.

You could start with federal laws; but you risk hurting your incorporation attempts and the federal laws are just plain harder to attack in most cases.

 

[Drgong]

The one thing I would love to be changed is the "Sporting" sections of federal law changed to "Sporting and Self defense" which will solve a lot of problems.

 

[Frank Ettin]

One reason there have been few challenges to federal laws post-Heller is that the state laws are much more onerous and make better targets for a Civil-Rights style litigation campaign. First you need incorporation though, so you can apply Heller to the states.

You could start with federal laws; but you risk hurting your incorporation attempts and the federal laws are just plain harder to attack in most cases.

Plus challenging a law is a very expensive proposition, and I doubt that we all have unlimited financial resources. So it makes sense to me to go after the most onerous and burdensome laws first.

 

[AntiqueCollector]

Congress passed it again.

 

[Henry Bowman]

The "school zone" laws where tossed out as being too vague.

It was tossed out as having not bearing on interstate commerce (and, therefore, now within Congress' power). Then Congress repassed with a statement in it about its effect on interstate commerce. It has not been challenged again yet. The Heller decision specifically mentioned gun free kill -- I mean, school -- zones as being acceptable. Go figure.

 

[AntiqueCollector]

It was tossed out as having not bearing on interstate commerce (and, therefore, now within Congress' power). Then Congress repassed with a statement in it about its effect on interstate commerce. It has not been challenged again yet. The Heller decision specifically mentioned gun free kill -- I mean, school -- zones as being acceptable. Go figure.

I could be mistaken but IIRC in heller it was said guns could be banned from properties such as schools. But the Gun Free School Zone Act creates a 1,000 ft. zone beyond school property, and discriminates between those who reside in permit to carry states and those who do not need a permit to carry. In some places, if you draw out the circles on a map of where it's illegal to carry based on it, you practically can't carry at all, unless you're not carrying a "firearm" as defined by federal law. I think it's ripe for attacking. There's a big difference between banning from school property, and banning from within 1,000 feet of a school. Both are stupid but one is a lot worse than the other, and infringes on rights a lot worse...

 

[Frank Ettin]

...in heller it was said guns could be banned from properties such as schools...

In Heller, the statement to that effect is what is known as "dicta", i. e., it's not really part of the ruling because it's not necessary to the decision in the case actually then before the Court. It therefore doesn't necessarily mean a whole lot.

The Gun Free School Zone Act may be stupid and ripe for attack. Do you happen to have the million or so dollars (give or take) lying around that would be needed to take a challenge of the law up to the Supreme Court?

 

[Henry Bowman]

I understand dicta (learned that in law school, though explanation may be helpful to others here). Dicta is useful to indicate how the Court would be likely to rule on the issue in the future and often guides lower courts in the meantime.

But your distinctions (fiddletown and AntiqueCollector) are valid.

 

[hugh damright]

IIRC, the gun free school zone extended 100 feet from a school, and when it was struck down, Clinton asked Reno how to circumvent the ruling, and Reno said to rewrite the law to apply to guns that had some relation to interstate commerce ... and to show us who was boss, they made the zones a hundred times bigger than what they had been before.

If a State wants gun free school zones that seems like their intrastate affair, but for the US to legislate such national laws is entirely a different matter.

 

[AntiqueCollector]

The Gun Free School Zone Act may be stupid and ripe for attack. Do you happen to have the million or so dollars (give or take) lying around that would be needed to take a challenge of the law up to the Supreme Court?

No but I figure someone who cares about it should, perhaps the NRA...

And I know what dicta is, but it does provide a clue as to what the court may say in the future (assuming the makeup of the court doesn't change by then).

 

[ilbob]

I figure there is a lot of low hanging fruit that should be litigated first.

 

[Sam Adams]

922(o) - 1986 machine gun ban. Not appreciably different than the DC ban.

DC ban - if you didn't own a particular gun prior to X date in 1976, you can't ever own it.

922(o) - if anyone didn't own a particular full auto gun prior to 5/19/86, then NO ONE can ever own it.

Both ban an entire class of weapons for the entire populace.

Further, 922(o) doesn't even pass Rational Scrutiny: I can own a Colt M16 manufactured on 5/18/86, but I can't own a substantially identical Colt M16 manufactured in the same factory 2 days (or 2 decades) later. ***, over?

 

[Frank Ettin]

No but I figure someone who cares about it should, perhaps the NRA...

And perhaps there are other laws that are more onerous or burdensome that folks with the money to do so are more inclined to challenge first.

 

[AntiqueCollector]

And perhaps there are other laws that are more onerous or burdensome that folks with the money to do so are more inclined to challenge first.

This law has far more effects than you suggest. Anyone in VT or AK who carries without a license (as none is needed) is affected, and anyone who open carries in open carry states without a CC license issued by that state is affected. I suspect lots of people have committed a felony without knowing it. I don't think this should be taken as lightly as it has been by the supposed "defenders" of gun rights, like the NRA...

 

[Frank Ettin]

This law has far more effects than you suggest. Anyone in VT or AK who carries without a license (as none is needed) is affected, and anyone who open carries in open carry states without a CC license issued by that state is affected. I suspect lots of people have committed a felony without knowing it....

But it's still a law that can be managed -- unlike the complete or virtually complete prohibitions on gun ownership in Chicago and draconian rules in New York City, or the discretionary carry licensing in New Jersey and Maryland.

As to the Gun Free School Zone Act, one can know what the law is and conduct himself accordingly. And anyone in a "shall issue" CCW state has ready access to a concealed carry license.

...I don't think this should be taken as lightly as it has been by the supposed "defenders" of gun rights, like the NRA...

And I don't think it's a question of it not being taken seriously. There is only so much money available at any one time for litigation, and litigation is very expense. It's a question of setting priorities. And in the meantime, anyone who has enough interest (and money) can proceed himself if he feels strongly enough.

 

[AntiqueCollector]

But it's still a law that can be managed

Yeah, I usually carry a cap and ball revolver, or an antique topbreak, because of it.

I suspect this law affects far more people than the laws in Chicago or NY. Yes the incorporation battle is very important, but we can't be ignoring a federal law that affects everyone in the country at least to some degree.

 

[hugh damright]

I think the gun free school zone is a Tenth Amendment issue, not a Second Amendment issue. To call it a Second Amendment issue implies that the the feds have gun control powers which are limited by the Second Amendment i.e. it is a vision of national government. To call it a Tenth Amendment issue implies that the feds are limited to enumerated powers i.e. it is a vision of limited federal government.

 

[Bartholomew Roberts]

922(o) - 1986 machine gun ban. Not appreciably different than the DC ban.

Not appreciably different to guys who understand firearms; but appreciably different to the vast masses of people and the politicians who seek their votes.

The ideas behind segregation were pretty clearly not within the scope of our Constitution and other legal documents yet it remained good law for quite a while. I'd say the MG ban is in the same category until we do better at educating the general public on firearms as a whole.

 

[Frank Ettin]

I suspect this law affects far more people than the laws in Chicago or NY.....

"Affects" in the sense perhaps that it requires people to plan ahead or make adjustments in their schedules or put up with some inconveniences. But the laws in Chicago and NYC "affect" people by effectively precluding them from owning handguns at all or creating significant barriers to owning handguns.