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darkskywatcher

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So, the Supreme Court likes guns [Jun. 27th, 2008|02:30 am]
darkskywatcher
[mood |awakeawake]

As those of you who care probably know by now, the Supreme court split down the party line and ended up overturning DC's handgun ban. So what does this mean for most of us? Not a damn thing, and for several good reasons.

First there is the particular setting of the case. DC is somewhat different than the rest of the country, since it is not part of a state and therefore there are fewer constitutional issues related to the legislation and licensing of handguns there as compared to most of the rest of the country.

This is contributing to the start of a second round of legal battles against local gun restrictions, most notably in Chicago. Again, both sides have a lot at stake and a lot of money to throw at their lawyers, which means that this case will probably take several more years to wind its way through the court system.

Third, there is the fact that even with a bare majority, Scalia had to do a pretty complicated dance to get this thing together. Namely, there were existing laws against possession of certain kinds of guns (namely machine guns), and against certain kinds of people having any guns, that were treated as sacrosanct. The problem with that (for him, anyway) is that it makes the opinion highly susceptible to a change in judicial opinion. And with a nicely split court that change could not be that far away.

Fourth, Scalia brushed aside various parts of former Court decisions, without actually being able to change them substantively. Those will probably continue to be very important in how judges decide cases, especially given the split in the court for this case.

Fifth, it's still illegal to actually shoot someone with a gun, which rather limits the utility of guns for most "law-abiding, responsible citizens".
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Comments:
[User Picture]From: nathan_lounge
2008-06-27 12:25 pm (UTC)
I'm not sure if I'd say it doesn't affect most of us. Mainly the first wave of effect is that it nullifies laws that cities set down over gun control that exceed state restrictions. For example, my city and most of Cleveland 'burbs and cities have laws against automatic assault rifles. Those became unconstitutional yesterday because Ohio does not have such laws.

You're right however that this doesn't create dramatic effect. The much more interesting ruling was on the Exxon case two days ago. That could be the unraveling of personal injury as we know it.
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[User Picture]From: nathan_lounge
2008-06-27 12:27 pm (UTC)
BTW - this ruling is considered a major victory for the right wing from a court that has failed to deliver on a lot of assumed promises for them. I'm just waiting for my government to just break down and issue everyone a 9mm with their income tax check.
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[User Picture]From: moocowrich
2008-06-27 12:34 pm (UTC)
If we got 9mm's with our tax checks, we could kill the child rapists that the government won't. Everyone wins!

PS - many folks are claiming this as a HUGE victory. Individual rights win the day! (They may be right, they may be wrong...but either way, they're happy.)
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[User Picture]From: nathan_lounge
2008-06-27 12:46 pm (UTC)
That's pretty much true. Up with down with big government!

This court has been pretty hardline about eye for an eye.
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[User Picture]From: darkskywatcher
2008-06-27 01:18 pm (UTC)
While I haven't read the opinions in the case (which are apparently 150+ pages), the NYT tells me that Scalia's opinion still finds possession of "dangerous and unusual" weapons to be illegal, and doesn't mention whether assault weapons fall into that category or not. So that kind of specific ban probably won't be immediately overturned.
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[User Picture]From: chuck4
2008-06-27 03:04 pm (UTC)
The federal assault weapon ban was pretty widely viewed as dumb, as it was targeted as weapons that looked scary in movies but weren't functionally much different from unbanned weapons. Ban was a strange word for it, too, because it just banned sale of new ones, making existing ones still entirely legal but increasingly expensive. The basic idea was to keep them away from poor people, but it's hard for a politician to come out and say that. Still, when Senator Feinstein was trying to get it renewed, she claimed it was a success because it was driving up prices.

You might think it's referring to things like deer hunting cannons, but those aren't affected by the National Firearms Act because they're smoothbore muzzleloaders. Even things that are covered by that (machine guns and such) aren't illegal, they just require nontrivial paperwork. I know people that collect machine guns, entirely legally, they just can't collect new ones. Again, the federal restrictions weren't designed to make them illegal, just to keep them away from poor people.

It probably refers to the really exotic stuff like antitank rockets, but I haven't read enough to know.
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[User Picture]From: darkskywatcher
2008-06-27 06:52 pm (UTC)
LJ fucked with that comment, in that it is a response to the first comment by nathan_lounge, rather than a stand alone comment.

I'm kinda confused why you bought up the federal ban, given that it is defunct and not really applicable to whether or not Cleveland et all is able to keep a similar ban in place.

I oversimplified when stating that machine guns are flat illegal. But all indications are that owning one is still considered a privilege-and a rather exclusive one at that-and not a right. And that means there is still room for the states and cities to claim that they have the power to invoke similar prohibitions on the sale of other types of weapons.
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[User Picture]From: chuck4
2008-06-27 07:26 pm (UTC)
I'm more pointing to the way gun control laws are political posturing and aren't really designed to keep people safe. It's security theater, same as the airport. The issue I'm commenting on isn't "Is it legal for Cleveland to have this law" it's "Does it do anything other than make ignorant people feel good." I don't know the Cleveland law, but I was guessing that it was similar to the federal one, which was useless for anything other than making guns that look like movie props more expensive.

Reading about the history of gun bans is actually kind of interesting. In United States v. Miller, the previous big gun case, the government argued that the second amendment only allowed people to own military weapons, not non-military ones. I doubt you'll see that same argument put forward this time around, but "civilians are only allowed to own military combat weapons, not hunting weapons" would certainly make for some lively elections. Not entirely implausible, either, as there is still a government agency responsible for selling surplus rifles to the public.

http://www.odcmp.com/about_us.htm
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[User Picture]From: darkskywatcher
2008-06-28 10:52 am (UTC)
Oh! Ok, yes, you're right, there is always going to be large amount of political posturing around this issue, which makes sense given America's love/hate relationship with it's guns.

Whether or not the laws are actually effective or not isn't something I feel informed enough to comment on, and for a Supreme Court opinion should be irrelevent anyway.
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[User Picture]From: nathan_lounge
2008-06-27 08:39 pm (UTC)
Nearly all small munitions that I'm aware of don't fall into that catagory less home-made trinkets and probably some things I'd never even think of. The important part of the whole opinion (I think) are the lines carefully carving national, state, and local rights out. This will be one of those opinions everyone has to read in con law classes now.
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[User Picture]From: darkskywatcher
2008-06-28 10:57 am (UTC)
All of the news reports- and the statements now coming out of city offices in DC and Chicago- that I have read seem to be indicating to me that there are not those kind of specific guidelines for delineation of powers and responsibilities. Does the opinion itself say any different?

But hey, it's another excellent reason not to take a con law class.
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From: thegelf
2008-06-27 02:53 pm (UTC)
Have you seen Mayor Fenty's response to this? It boils down to that he's unhappy with the court, but just because the court has ruled people may keep hand guns in their homes for self defense doesn't make hand guns on the street legal. So instead of banning all handguns, they'll ban carrying handguns outside of a house, and confiscate them if they come across them outside of a house.

In some ways, it was a broad decision (owning a gun is a personal right, not a collective right), but in some ways it was a very narrow decision (people may not be denied a hand gun in their home for self defense). What this may impact most is trigger lock laws, since the opinion struck down the dismantle/trigger lock requirement for rifles/shotguns in homes.
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[User Picture]From: darkskywatcher
2008-06-27 06:54 pm (UTC)
Yup. As I said, this wasn't the knockout punch for gun control that some people believe it was.
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[User Picture]From: kate_the_bear
2008-06-27 04:59 pm (UTC)
The most interesting thing imho is that the even though in this instance it was upheld as a personal right the actual statement is that it is a state right to regulate- i would not be surprised if states are able to use this opinion to more strictly regulate... that being said the Exxon case is absolutely the case that will have greater impact. the biggest deterent to trails for companies has been the fear that juries will ruin their business with punative damages- personal injury will probably never be the same.
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[User Picture]From: nathan_lounge
2008-06-27 08:34 pm (UTC)
Hmmm...more guns and less personal injury damages...Maybe Scalia is about to go settle some bizne33...
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