DC judge dismisses Heller?

[ladder13]

NRA-ILA :: Court Dismisses "Heller II" Case: D.C. Gun Registration, "Assault Weapon" Ban, and "Large" Magazine Ban Upheld

 

[DonD]

Judge Urbina sounds like a liberal schill. Wonder who bought him off? I hope it is appealed and shoved down his throat. I seriously doubt that Justice Scalia would approve. Don

 

[PDL]

Actually that could be a good thing. The AWB, Hi-Cap, and registration laws that exist might go away. If they can convince the Supreme Court that those aren't 'valid' government regulations. Even if they just got rid of the AWB and Hi-Cap bans that would be a good start.
In this state a bayonette lug can get a rifle banned. That don't sound real reasonable to me.

 

[AZretired]

From what I understand the original SCOTUS Heller case did not deal with registration or magazine capacity etc so they could not address the issue. This could be a chance to decide what is "reasonable" regulations.

 

[Sebago Son]

I'm choking on the idea of putting "Reasonable" and Gun "Regulations" in the same sentence...

Letting someone else decide these terms is what has brought us to the brink of a complete ban on several occasions.

If the issue really is Crime Control then the only really reasonable position is to speedily and thoroughly punish those that transgress against their fellow man with firearms.

However, if the issue is Oppression and Subjugation then allowing the government to decide when, where and with what you may be armed will only make you a subject to a ruler.

 

[oldman45]

Judge Urbina sounds like a liberal schill. Wonder who bought him off? I hope it is appealed and shoved down his throat. I seriously doubt that Justice Scalia would approve. Don

Without liberals in Washington D.C., it would be a ghost town.

From a legal point, this Judge Urbina is a small fish in a big pond. He is nothing more than a District Judge. From hir ruling, it will go to an appeallate court, then on up through acouple more courts until it gets to the US Supreme Court.

From my take on it, the Judge is right. The Second Amendment does not give us the right to do any more with firearms than own them. While the intent of the law is to allow us firearm ownership, the letter of the law would allow us to ownanti aircraft guns. None of which allows us the right to own a magazine holding 100 rounds. I think we should be able to own whatever we want but the law does not look at it that way. The Judge is also correct in that a lot, if not most, of the major shootings are being done through the use of large capacity weapons. Thirty or forty years ago this was not the case since most handguns were revolvers or .45ACP and few held more than 10 rounds.

 

[Hoplophile]

From my take on it, the Judge is right. The Second Amendment does not give us the right to do any more with firearms than own them. While the intent of the law is to allow us firearm ownership, the letter of the law would allow us to ownanti aircraft guns.

Not quite, OldMan.

The affirmed right is to "keep and BEAR arms." Bear goes far beyond mere possession.

As for "anti-aircraft guns," historical precedent shows colonists were expected (required by law in some colonies) to keep INDIVIDUAL arms -- muskets or rifles, swords, handguns. Larger weapons such as cannon were generally held "in common" -- that is, they belonged to the town.

It's true that Heller I only challenged the DC handgun ban and requirement to secure/dismantle all firearms in the home. And that's what the court ruled on in 2008.

The SCOTUS likes to take baby steps. Heller opened the door to the individual rights interpretation, in the federal enclave of DC. McDonald v City of Chicago will extend that to all the states.

Then comes the decision of which standard of scrutiny to apply: strict scrutiny (usually reserved for fundamental rights), intermediate scrutiny, or rational basis.

When that is all settled, we start dismantling gun laws all across the country, one by one. Heller II was a bit premature from that perspective, but Heller was forced to sue again because DC rewrote its registration law to allow handgun registration, but made it as onerous as possible to comply.

As with most liberals, you have to drag them kicking and screaming towards reality and the truth. None of DCs unconstitutional and restrictive laws ever stopped a criminal from obtaining and misusung a firearm within the District. They only impacted the law abiding.

 

[oldman45]

Not quite, OldMan.

The affirmed right is to "keep and BEAR arms." Bear goes far beyond mere possession.

.

Courts view the wording carefully, hence the intent of the law vs the letter of the law.

bear 1 >verb (past bore; past part. borne) 1 carry. 2 have as a quality or visible mark. 3 support (a weight).

To Keep and bear arms means nothing more than to own and carry. It does not address which arms or how much ammo.

The problem is we all tend to read more into the laws than is there. I ran into a couple of cases where people were carrying more than one firearm using a CCW permit but the law says "A" weapon (although some states are specific in what weapon). The same with excess speeding in autos. When the limit is 60 MPH, the motorist will do 70 and feel secure even though that is not what the law says.

In the issue of guns, laws are way too restrictive on the honest citizen and way to lenient on the criminal. As honest citizens, we are bound to follow the law.

I would love to see many of the gun laws done away with but then some would still go past what the laws say. A few have lost the right to carry concealed because of that abuse.

The ruling made in D.C. will be appealed. As I tell people, I do not need to go to Vegas to gamble but just go to court. While you always want a win, the chance is there for a loss. It is often best to settle for what you have on the table rather than press your luck. Think of what a negative ruling from the US Supreme Court would do to our rights. There would be little in the way of an appeal but the more times the gun issue is taken there, the more the risk of loss. With the current administration, it is likely to get additional liberal jusges and that increases the risk of loss. The matter of interpretation is left to the Judge as to how they feel the law applies. We all know how liberals interpret the law.

 

[DonD]

As with most liberals, you have to drag them kicking and screaming towards reality and the truth. None of DCs unconstitutional and restrictive laws ever stopped a criminal from obtaining and misusung a firearm within the District. They only impacted the law abiding.

That bit covers the territory quite well. Unfortunately, too many people actually think anti gun laws are of at least some value, which we all know isn't the case. They seem to think that if it helps at all, it is worth depriving others of their lawful rights.

We're all aware of the saying "when seconds count, police are only minutes away." Don

 

[grendelbane]

The problem is we all tend to read more into the laws than is there. I ran into a couple of cases where people were carrying more than one firearm using a CCW permit but the law says "A" weapon (although some states are specific in what weapon).

The nice thing about my Kentucky CCDW is that it says weapons. It used to say "weapon(s)". Not sure about the difference there.

It doesn't have to be a fire-arm. Nunchuks and shurikens are specifically named. Not that I am going to carry either one, but I don't have to worry about a knife or dropping a box-cutter in my pocket.

I think they got this one right. Though, I do believe that if you are going to carry nunchuks, you should have to display proficiency. I want to watch when people take their nunchuk competency tests, from a safe distance.

 

[oldman45]

The nice thing about my Kentucky CCDW is that it says weapons. It used to say "weapon(s)". Not sure about the difference there.

It doesn't have to be a fire-arm. Nunchuks and shurikens are specifically named. Not that I am going to carry either one, but I don't have to worry about a knife or dropping a box-cutter in my pocket.

I think they got this one right. Though, I do believe that if you are going to carry nunchuks, you should have to display proficiency. I want to watch when people take their nunchuk competency tests, from a safe distance.

The concealed laws can also include knives (particularly over 4 inches), batons and other things. But I rather be shot than beat by sticks. Just shoot me and get it over with instead of hitting me with sticks while yelling at me.

 

[Jamesaritchie]

From my take on it, the Judge is right. The Second Amendment does not give us the right to do any more with firearms than own them. While the intent of the law is to allow us firearm ownership, the letter of the law would allow us to ownanti aircraft guns. None of which allows us the right to own a magazine holding 100 rounds. I think we should be able to own whatever we want but the law does not look at it that way. The Judge is also correct in that a lot, if not most, of the major shootings are being done through the use of large capacity weapons. Thirty or forty years ago this was not the case since most handguns were revolvers or .45ACP and few held more than 10 rounds.

I don't even understand such thinking. BEAR arms means carry them, not merely own them. It literally means "have on one's person." The founding fathers said it meant this, and practiced it in daily life.

It still means this, no matter what the Supreme Court, or a pinhead judge in Washington may think.

The judge has no idea what he's talking about. If we do away with high capacity magazines, just as many crimes will be committed, and just as many murders will occur, but then people will be saying "Most of the major shootings were done with low capactity magazines."

And, of course, it simply isn't true that high capacity weapons didn't exist thirty or forty years ago.

I guarantee you this. !00% of all the shootings and crimes were done by criminals, not by weapons of any kind.

Honestly, I don't care what the judge says, or even what the Constitution says. A right is not there because a law says it is, a right is something we have despite whatever the law has to say.

I believe in the right to freedom, and I would still belive in it, I would still fight for it, even if the law of the land said I could not have it. Firearms capable of defending yourself againts criminals, and against armed authorities, are the only gurantee of freedom we have.

 

[oldman45]

I don't even understand such thinking. BEAR arms means carry them, not merely own them. It literally means "have on one's person." The founding fathers said it meant this, and practiced it in daily life.

It still means this, no matter what the Supreme Court, or a pinhead judge in Washington may think.

The judge has no idea what he's talking about. If we do away with high capacity magazines, just as many crimes will be committed, and just as many murders will occur, but then people will be saying "Most of the major shootings were done with low capactity magazines."

And, of course, it simply isn't true that high capacity weapons didn't exist thirty or forty years ago.

I guarantee you this. !00% of all the shootings and crimes were done by criminals, not by weapons of any kind.

Honestly, I don't care what the judge says, or even what the Constitution says. A right is not there because a law says it is, a right is something we have despite whatever the law has to say.

I believe in the right to freedom, and I would still belive in it, I would still fight for it, even if the law of the land said I could not have it. Firearms capable of defending yourself againts criminals, and against armed authorities, are the only gurantee of freedom we have.

Well, you best study Constitutional Law then. The Right we are all so proud of is given us by LAW. That law can be removed. Granted it would take an Act of Congress but it can be taken and the law changed. There are several areas including the US Capitol where the Right to bear arms has been removed and has not been restored even with Supreme Court rulings.

As to high capacity mags, they are relatively recent. I served in the Army in 1965. My Browning held 15 rounds, my Colt held 8. The German Lugar held about eight. Sure, there were some high capacity auto weapons but the general public did not have them for the most part. Until about 30 yrs ago, police departments used six shot revolvers. When we came upon a person with high capacity mags, they were generally homemade. The capacity of a mag does not determine the crime. We see the gangbangers, the drug dealers and such with the high capacity mags but they are not after the police. They are out for their competition or those that rip them off. To assure hits, they need a lot of ammo and their ammo capacity gives them some assurance of safety. Police will generally fire 3 rounds. Perps will generally fire 12.

You are way wrong about all shootings are done by criminals. They become criminals after the shooting. Each day across the US, someone is murdered in a domestic argument that turned deadly due to drugs, alcohol and someone having a firearm. These are people with good jobs, nice homes and never a criminal history. Two local doctors have gone to prison for shooting their wives.

The idea of doing something when the law says you cannot makes a person a criminal.

The US was founded by those looking for Freedom and the Consititution was their Charter in 1787. The Bill of Rights came later in 1791. The Bill of Rights is always being added to with new Rights, the last being in 1992. There have been revisions to some of the Rights over the years. Our Right to carry is subject to being changed. There are certain firearm issues the NRA does not want to come before the Supreme Court because it is not sure what the ruling would be. There are some here that are too young to remember what Rights we used to have. In 1962, we could buy a firearm in a drug store as long as we had money to pay for it. There was no FFL or registration. Laws were implemented that changed that. Clinton implemented laws that limited the capacity of magazines.

Do not take the 2nd Amendent as being set in stone because it can be limited or lost with your President signing another law.

And as Louisiana and some other states have laws to prevent some from owning a firearm, you and I could easily be put in that group. A felon can own a black powder weapon but not any other. A Supreme Court can say we can only own a black powder weapon as well. Best be happy with what you have and spend more time studying the law. I spent seven yrs in college studying criminal and Constitutional Law and still learn more each year since 1961.

 

[Lew Archer]

This decision is yet another in a series that will, over a period of years, decades even, map out the scope of the 2nd Amendment right. The question presented in this case is what "standard of review" the courts will apply to gun control regulations. The plaintiffs (Heller again) argued for the highest level in Constitutional jurisprudence: strict scrutiny.

The test for "strict scrutiny": The government must establish a compelling need, and that the regulation was narrowly tailored and was the least restrictive means available.

Strict scrutiny, when applied to a regulation or law, is tough on the government...while it may be easy enough to show a compelling interest, it's hard to prove the regulation is question was the "least restrictive means."

The first Heller avoided stating what standard of review would be applied in gun cases. The Court explained it was not necessary to do so in that case, because under ANY standard, the DC ban on handguns would fail. So, it's an open question as to what is the correct standard of review.

Heller II, with its predictable outcome at this early stage, sets us up for an appeal...and, eventually, in this case or another, the Supreme Court will have to announce the appropriate standard of review for gun cases. Otherwise, courts will be all over the map as they consider gun regulations nationwide.

The best case scenario, from a gun rights point of view, would be for the Supreme Court to announce that strict scrutiny is, in fact, the correct standard.

The worst case scenario would be the "rational basis" test, which is usually easy for the government (which only has to show that the law was "rationally" related to a legitimate state interest). Most gun laws would prevail under such a standard.

The Court may choose some middle ground...we will simply have to wait and see.

In the meantime, the big question, soon to be answered, is whether the Court "incorporates" the 2nd Amendment and makes it applicable to the States via the 14th Amendment of the US Constitution. If the Court opts to "incorporate", as most expect, then the development of 2nd Amendment jurisprudence can really begin.

It will take decades to sort out all the issues presented in 2nd Amendment cases, as it took much of the 20th Century to map out the boundaries of the First Amendment.

 

[Raspy]

Lew,

Good post and thanks for that.

The important issue is the matter of incorporation, through the 14th amendment. If the decision goes for incorporation it will be interesting to see what happens next.

Can we expect to hear a decision in June?

 

[Lew Archer]

Lew,

Good post and thanks for that.

The important issue is the matter of incorporation, through the 14th amendment. If the decision goes for incorporation it will be interesting to see what happens next.

Can we expect to hear a decision in June?

Thanks, Raspy. I'm not sure when the decision in the McDonald v. Chicago case will be announced...June sounds right, though. Anybody know?

I agree, too with you about incorporation. If it occurs, it will be tremendously important. Take California, for instance. The California Supreme Court and the 9th Circuit Court of Appeals have previously held that there is no individual right to own firearms (though, after Heller, a 3 judge panel of the 9th Circuit reversed itself on that question).

If incorporation occurs, Californians will have their personal 2nd Amendment rights recognized for the first time. Sadly, the state constitution does not specify such an individual right.

So, right off the bat, a huge change in the gun rights' landscape, at the level of the nation's most populous state, if incorporation occurs.

If, for some reason, the Court rules against incorporation, the individual right announced in Heller will be limited to restricting the Federal government. Since most gun control laws are actually at the state level, the impact of Heller would be marginalized.

Now, even in the event of incorporation, the question of the appropriate standard of review (presented by the case which launched this thread) will remain. That will be the next big issue. There is probably no greater Constitutional question then to determine the standard by which a gun law would be reviewed. In conlaw, the standard is the test the law in question must satisfy to be upheld.

If the Court chooses a standard of review tougher then the "rational basis test", it will be a big 2nd Amendment win.

If the Court chooses the easy to pass test--rational basis review--it would be easy for judges to articulate, if so inclined, that a given restriction was "rationally related to a legitimate state purpose." The law doesn't have to make sense, or have value, just have some rational relationship to a legitimate purpose. The government doesn't have to show much to win, if that's the test it must meet. Dumb laws, silly laws, ineffective laws may all be upheld if they pass this low bar of a test.

Here's the good news: Usually, in the case of fundamental rights, rational basis review isn't used, because it fails to protect such rights adequately.

And, part of the argument in favor of incorporation will be that the 2nd Amendment is a fundamental right. So, a Supreme Court decision to incorporate would also influence how the Court later determines which standard of review should be used.

Generally, for "fundamental rights, implicit in the concept of ordered liberty", the usual standard is the toughest: strict scrutiny. In fact, that 3 judge panel of the 9th Circuit, reviewing the question after Heller, concluded the 2nd Amendment was just such a right. If, down the road, the Supreme Court agrees with that conclusion, then strict scrutiny should be the standard.

Strict scrutiny is THE toughest test in Constitutional analysis.

So, if that's the chosen standard, it would be a 2nd Amendment win beyond imagining, since so many restrictions would get hung up the "least restrictive means" aspect of the test.

Other questions, of course, will also present...such as what weapons are covered, what, exactly does "bear" mean, etc.

We are watching Constitutional history unfold, on an unchartered topic. That doesn't happen very often.

Sorry for going on so long, but this is pretty interesting, if you're either a conlaw buff, a gun buff, or both. Count me as both.

 

[oldman45]

Thanks, Raspy. I'm not sure when the decision in the McDonald v. Chicago case will be announced...June sounds right, though. Anybody know?

I agree, too with you about incorporation. If it occurs, it will be tremendously important. Take California, for instance. The California Supreme Court and the 9th Circuit Court of Appeals have previously held that there is no individual right to own firearms (though, after Heller, a 3 judge panel of the 9th Circuit reversed itself on that question).

If incorporation occurs, Californians will have their personal 2nd Amendment rights recognized for the first time. Sadly, the state constitution does not specify such an individual right.

So, right off the bat, a huge change in the gun rights' landscape, at the level of the nation's most populous state, if incorporation occurs.

If, for some reason, the Court rules against incorporation, the individual right announced in Heller will be limited to restricting the Federal government. Since most gun control laws are actually at the state level, the impact of Heller would be marginalized.

Now, even in the event of incorporation, the question of the appropriate standard of review (presented by the case which launched this thread) will remain. That will be the next big issue. There is probably no greater Constitutional question then to determine the standard by which a gun law would be reviewed. In conlaw, the standard is the test the law in question must satisfy to be upheld.

If the Court chooses a standard of review tougher then the "rational basis test", it will be a big 2nd Amendment win.

If the Court chooses the easy to pass test--rational basis review--it would be easy for judges to articulate, if so inclined, that a given restriction was "rationally related to a legitimate state purpose." The law doesn't have to make sense, or have value, just have some rational relationship to a legitimate purpose. The government doesn't have to show much to win, if that's the test it must meet. Dumb laws, silly laws, ineffective laws may all be upheld if they pass this low bar of a test.

Here's the good news: Usually, in the case of fundamental rights, rational basis review isn't used, because it fails to protect such rights adequately.

And, part of the argument in favor of incorporation will be that the 2nd Amendment is a fundamental right. So, a Supreme Court decision to incorporate would also influence how the Court later determines which standard of review should be used.

Generally, for "fundamental rights, implicit in the concept of ordered liberty", the usual standard is the toughest: strict scrutiny. In fact, that 3 judge panel of the 9th Circuit, reviewing the question after Heller, concluded the 2nd Amendment was just such a right. If, down the road, the Supreme Court agrees with that conclusion, then strict scrutiny should be the standard.

Strict scrutiny is THE toughest test in Constitutional analysis.

So, if that's the chosen standard, it would be a 2nd Amendment win beyond imagining, since so many restrictions would get hung up the "least restrictive means" aspect of the test.

Other questions, of course, will also present...such as what weapons are covered, what, exactly does "bear" mean, etc.

We are watching Constitutional history unfold, on an unchartered topic. That doesn't happen very often.

Sorry for going on so long, but this is pretty interesting, if you're either a conlaw buff, a gun buff, or both. Count me as both.

It has to be remembered that the 9th Circuit has a high percentage of their off the wall rulings overturned. They are almost a joke in the legal community. Many of their rulings have been without reason or sanity.

 

[Raspy]

Lew,

Thanks for another excellent and detailed post.

If incorporation occurs, what will happen to limit the rights of criminals, children and the mentally ill while recognizing 2nd amendment rights? I can imagine a long court battle to actually incorporate and define what it all looks like. Won't all states be dealing with some tricky questions concerning their own constitutions? Another might be, what guns are considered "arms", etc. California has a lot of restrictions on what guns are even allowed to be here. Not just large military weapons but the Taurus Judge, for instance, or guns with 20 round clips.

This case seems like too big of a change to actually be decided in favor of incorporation, but on the other hand, seems way overdue and impossible to deny any longer. After reading up on the argument, it seems the case for incorporation is rock solid. Interesting. This looks like a pivotal moment in US history and bound to cause a lot of heated debate or outright rebellion. I wonder if the standard of review issue will be used to give the court an easy way out.

I'm pretty naive on a lot of this, but very interested and learning.

Thanks again for your thoughtful post.

 

[Lew Archer]

It has to be remembered that the 9th Circuit has a high percentage of their off the wall rulings overturned. They are almost a joke in the legal community. Many of their rulings have been without reason or sanity.

True. But even a broken clock is right once or twice a day!

Seriously, the 9th Circuit's opinion in the Nordyke case is well worth reading, as it does a detailed analysis of the incorporation question, concluding the 2nd Amendment should be incorporated, under the Due Process clause of the 14th Amendment. Additionally, they rejected incorporation under the Privileges and Immunities clause of the 14th. Two of the three judges were Carter appointees. Those who expect the Supreme Court to incorporate in the McDonald case predict a similar result (incorporation via the Due Process, not the P&I clause).

Now, before the McDonald case was set to go before the Supreme Court, the Nordyke case was to be reheard by the 9th, since the Nordkye decision was by a three judge panel. That being the case, it was not the 9th last word on the matter. Who knows what that word would have been. Anyway, it's moot, because the 9th is now awaiting the result in McDonald, as the Supreme Court has the last word.

Of course, the reason McDonald got to the Supreme Court is because another Circuit (6th, I think) said it was for the Supreme Court, alone, to decide the incorporation issue.

Anyway, we'll soon know the answer to the incorporation question.

 

[Lew Archer]

Lew,

Thanks for another excellent and detailed post.

If incorporation occurs, what will happen to limit the rights of criminals, children and the mentally ill while recognizing 2nd amendment rights? I can imagine a long court battle to actually incorporate and define what it all looks like. Won't all states be dealing with some tricky questions concerning their own constitutions? Another might be, what guns are considered "arms", etc. California has a lot of restrictions on what guns are even allowed to be here. Not just large military weapons but the Taurus Judge, for instance, or guns with 20 round clips.

This case seems like too big of a change to actually be decided in favor of incorporation, but on the other hand, seems way overdue and impossible to deny any longer. After reading up on the argument, it seems the case for incorporation is rock solid. Interesting. This looks like a pivotal moment in US history and bound to cause a lot of heated debate or outright rebellion. I wonder if the standard of review issue will be used to give the court an easy way out.

I'm pretty naive on a lot of this, but very interested and learning.

Thanks again for your thoughtful post.

Thanks again, Raspy, for your kind words. The McDonald case won't decide the standard of review question, since that issue is not before the Court. The Court can only address the questions presented in the case at bar.

In McDonald, the issue is incorporation. Interestingly, there are people on the left of the political spectrum who also want to see incorporation---but not because they like guns.

Here's why:

The Federal Constitution, originally, only bound the Federal government. After the Civil War, however, and the 14th Amendment, the Court was faced with the question of whether the 14th Amendment required that the States ALSO be bound by the Federal Constitution. The pure conservative legal view was NO. The pure liberal view was YES. The Court took a middle ground and created the doctrine of "selective" incorporation. In other words, decide which provisions of the US Constitution apply to the States as well as the Federal government, on a case by case basis. It's not intuitive to the public, who tend to assume that the US Constitution, soup to nuts, binds the states. But that's not the case and never has been.

Consider jury trials. The 6th Amendment recognizes a right to a jury trial. But this particular provision has not yet been incorporated, so it only applies to the Federal government. So, states aren't required to have juries, at least not by the Federal consititution.

That's just one example. So, from a liberal's point of view, incorporating the 2nd Amendment strengthens the argument to incorporate other provisions of the Federal constitution. That, to some liberals, is more important than the gun issue. By contrast, many conservatives, like Justice Scalia, who usually don't care for incorporation, are willing to tolerate the doctrine this time to achieve recognition of gun rights across the states.

As to your other questions...children, mentally ill, etc. In the early part of the 20th Century, the Court breathed real life into 1st Amendment jurisprudence. All the big cases occurred during the 20th Century. Year after year, issue by issue, questions are resolved. Same thing with the 4th Amendment.

So, as various laws are challenged, different issues, often obscure but significant, will present themselves and those questions will be resolved case by case.

With regard to children...take the 4th Amendment, which generally doesn't permit a search without a warrant, unless you meet one of the exceptions to the warrant requirement. Faced with the problem of drugs in school, the Court found a way to uphold searches that wouldn't be upheld had they occurred outside the school and involved adults. The Court tried to strike a balance...protecting the child from the government, but also protecting the child from his or herself. I predict the Court would do the same with regard to guns. In fact, the Court will likely turn to those 4th Amendment cases to reach a sane result, should that particular issue arise. Keep in mind that for the issue to come up, somebody's got to go to court to contest a law. Meaning, some minor would have to file a suit arguing the prohibition against purchasing a gun violated his 2nd Amendment rights.

In Heller, Scalia signaled that the decision didn't mean that felons could possess guns. Recall that felons are prohibited from voting. I don't think the Court will have too much trouble dealing with that one.

The standard of review is a key question, as the easier the test, the easier it is for a law to pass muster. I don't the Court, when it finally deals with this question, will impose strict scrutiny. I think some creativity will kick in and they will find a middle ground between strict scrutiny and the too low-threshold rational basis test.

For example, the Court opted for a mid-tier review (something less than strict scrutiny) of laws that discriminate on the basis of gender. However, laws that discriminate based on race are subjected to strict scrutiny.

So, eventually, I think we will see some form of mid tier review with regard to gun cases. But, this will take a long time, years, to sort out. Along the way we will have some good decisions (from a gun rights point of view) and some setbacks.

It's the nature of the Constitutional beast.

A final thought: If the Court incorporates, and thus requires the states to recognize that the 2nd Amendment grants an individual right to possess guns, whatever the Court ultimately says regarding the scope of that right establishes the floor, not the ceiling.

In other words, states, via legislature and their own case law, can require greater protection of gun rights then the Federal law requires. In other words, a pro gun state won't be forced to reduce gun freedoms to a lower level set at the Federal level. An anti gun state will have to grant at least as much freedom as required at the Federal level.

For example, let's say that down the road, after incorporation, the US Supreme Court upholds CA's assault weapon ban. That doesn't mean AZ needs to ban assault weapons.

CA would, however, have to grant at least as much liberty as granted at the Federal level.

For example, right now, Heller stands for the rule that an absolute ban of handgun ownership is unconstitutional. If incorporation occurs, CA could never have an absolute ban on handguns. That much we already know. That's the floor at this point in time.

States can always give their citizens more freedoms.

The beauty of incorporation is that states can't give their citizen's LESS rights than the Federal government.

If you read this far, thanks for taking the time to do so!