Law

Can Senseless Gun Regulations Be Constitutional? 

Under New York's rules, licensed pistol and revolver owners were not allowed to leave home with their handguns unless they were traveling to or from a shooting range.

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New York City's uniquely onerous restrictions on transporting guns were so hard to justify that the city stopped trying. Instead, it rewrote the rules after the Supreme Court agreed to hear a challenge to their constitutionality in New York State Rifle & Pistol Association v. City of New York. The justices should drop the case, the city said, because it was now moot.

Despite the dubiousness of New York's regulations, the city successfully defended them for five years, obtaining favorable rulings from a federal judge and the U.S. Court of Appeals for the 2nd Circuit.

Under New York's rules, licensed pistol and revolver owners were not allowed to leave home with their handguns, even if they were unloaded and stored in a locked container, unless they were traveling to or from one of seven gun ranges in the city. If a New Yorker wanted to practice at a range, participate in a competition, or defend himself at a second home outside the five boroughs, the only legal option was to buy (or rent) additional handguns.

"What public safety or any other reasonable end is served by saying you have to have two guns instead of one?" wondered Justice Ruth Bader Ginsburg, no one's idea of a Second Amendment fanatic, during oral argument in December. She noted that "one of those guns has to be maintained in a place that is often unoccupied and that therefore [is] more vulnerable to theft." New York's lawyer was stumped.

Justice Samuel Alito asked if New Yorkers are "less safe" now that the city has loosened its restrictions. "No, I don't think so," the city's attorney replied. "We made a judgment…that it was consistent with public safety to repeal the prior rule." In that case, Alito wondered, "what possible justification could there have been for the old rule, which you have abandoned?"

As the gun owners who challenged New York's transport ban noted, the city claimed that "the mere presence of a handgun—even unloaded, secured in a pistol case, separated from its ammunition, and stowed in the trunk of the car—might pose a public-safety risk in 'road rage' or other 'stressful' situations." That implausible scenario was enough to persuade the 2nd Circuit, which said the city's concerns outweighed the plaintiffs' "trivial" interest in using their guns for self-defense outside the city or in honing the skills required for that constitutionally protected purpose.

Assuming the Supreme Court does not decide the case is moot, it offers an opportunity to correct such disdain for the right to keep and bear arms, which lower courts routinely treat as a minor hindrance that can be overcome by the slightest excuse.

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71 responses to “Can Senseless Gun Regulations Be Constitutional? 

  1. Senseless or “common sense”, any gun control law is unconstitutional.
    “Shall not be infringed” is as plain as it gets.
    If you think an infringement is “OK” for guns, apply it to the right to vote, or the right to have a social media account, and let me know how that works out.

    1. funny how Scalia disagrees with you

      ‘well regulated’ is as plain as it gets

      That said

      stupid laws
      stupid is not necessarily unconstitutional
      but these ought to be

      1. Scalia is not some God we libertarians bow down to. We believe the Heller case was decided correctly but that Scalia was scared to challenge previous rulings. That’s why I like clarence thomas so much, he’s not afraid to throw out state deficits in favor or the actual legality like in McDonald. Well regulated has nothing to do with the right to keep and bear arms, you should probably loo y learn more about the second before commenting on it.

        1. state decisis in favor of- autospell is a bitch

          1. 3rd time’s the charm…stare decisis

        2. More importantly getting that complete squish Kennedy to sign on to such an opinion was a non-starter.

      2. “Well regulated” doesn’t mean what you think it does. In the 18th century, “regulated” meant “supplied”, specifically, uniformly supplied. This sense of the word survives in today’s English in the use of the word “regulars” to describe government soldiers. When the 2nd Amendment says “well regulated”, it means every member of the militia should be able to show up with his own suitable weapon.

        1. When sheriffs rounded up posses to serve a warrant on someone wanted for murder, robbery and the like, those were well regulated militias, because no sheriff got elected for going after murderers with unarmed helpers. That system broke down after the 16th and 18th Amendments added force laws to create victimless “crimes.” American English, like the Constitution, is being gradually poisoned from within so well regulated is misinterpreted while Free, Right, and Not are effaced by political appointees.

      3. A well regulated militia is armed to the teeth, not disarmed.

        But you are misreading the prefatory clause in the second amendment. It has every bit as much force as the prefatory clause of the Constitution “We the People…”, which is none. The purpose of the clause was to explain why the unfettered right to keep and bear arms was a vital federal issue, and not just an issue to be left to the states.

      4. And a new sock puppet appears on cue.

        1. SQRLSY is bad at socking.

          1. What isn’t he bad at?

      5. Fuck off Hihn.

        “‘well regulated’ is as plain as it gets”

        Especially when it means well trained, and has sweet fuck all to do with laws.

      6. arpiniant1
        February.22.2020 at 9:02 am
        “funny how Scalia disagrees with you…”

        Funny how lefty ignoramuses who despise Scalia suddenly think he’s ‘the authority’ when he blows one and agrees with them.
        “Shall not be infringed” is as plain as it gets; even a cave man could understand that, but it’s asking entirely too much of a lefty ignoramus.

      7. A great deal of mischief has been done by the shifting meaning of “regulated.” See also the commerce clause. Today “regulate” has strong connotations of “restrict, inhibit, limit” that it didn’t have back in the late 1700s.

        Back in the early 1700s, the King of England described St. Paul’s Cathedral as “awful, pompous and artificial.” He meant it as a complement; a 20th century rephrasing might be “awe-inspiring, stately, and ingeniously conceived.”

      8. 2A doesn’t define or grant the right to bear arms, it explicitly limits federal and state powers. But it doesn’t change the principle that the US government is one of enumerated powers.

        Where in the Constitution is the federal government granted the power to limit the ability of citizens to carry guns wherever they please?

      9. Go read the text of the second amendment again. The thing to be “well regulated” is the militia, not the right to keep and bear arms.

        And well, they regulated the militia right out of existence.

      10. If a New Yorker wanted to practice at a range, participate in a competition, or defend himself at a second home outside NYC, NYC banned taking their legally registered and licensed handgun from NYC. (And the few legal gun ranges in NYC are over-booked anyway.)

        Justice Ruth Bader Ginsburg found that ban questionable, and the NYC attorney admitted in court the ban did not enhance public safety. How can you defend that as “well regulated” in any sense of the phrase “well regulated”. Does it support civilian marksmanship as part of the militia? Does it support gun control with a view to prevent crime? Even RGB found it a nonsense regulation and the NYC attorney admitted it did not enhance publicc safety to have it and did not endanger public safety to remove it.

        As Penn & Teller pointed out in their special on gun control, Gun Control is Bullshit.
        Nonsense regulations just because they are against guns and inconvenience gun owners without measurable benefit is foolish.

    2. Right. If you take the idea of rights seriously, being sensible isn’t enough to justify violating them. It doesn’t say the right shall not be senselessly infringed. It says it shall not be infringed, PERIOD.

      1. Citizens in the US don’t have specific rights, they have an infinity of rights; what you greed to take seriously is enumerated powers, and there is no enumerated power to restrict gun ownership or the carrying of arms. Originally, this only applied to the federal government, but the courts foolishly extended all that to states, then discovered that wasn’t workable, and then started chipping away at the Constitution itself.

    3. There’s no right to vote ask any felon.

      1. The whole idea is kind of absurd if you think about it.

  2. Easy, provided one makes the assumption that the private ownership of a firearm is an inherently criminal act (malum in se). If you accept that assumption, it provides an obvious compelling government interest that justifies any and all firearm regulations, up to and including a total ban.

    Now one could make a similar assumption about blacks: That being a free black is inherently criminal, and so there’s a compelling state interest that basically voids the Thirteenth, Fourteenth, and Fifteenth Amendments in their entirety. That would make it perfectly Constitutional to revert black Americans back to their antebellum status.

    I consider both assumptions to be horrible, but as best as I’m able to tell, the anti-gun advocates really do believe the one about firearm ownership being an inherently criminal act.

    1. You can make whatever assumptions you like, but the 2A explicitly says that no matter what, the right shall not be infringed.

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  4. Can senseless laws be Constitutional? I’d like to think not, the Constitution is a limited grant of authority to the government by We The People for specific ends and any law must meet the test of both a necessary and a proper use of that authority. Unfortunately, in a clear case of quis custodiet ipsos custodes, we’ve left it up to the government itself to decide what is necessary and proper and the whole thing’s gone off the rails.

    Laws necessarily have to have a little wiggle room in them because you simply can’t anticipate every single case in such minute detail that you can’t allow for a little discretion in the law and the sort of people attracted to power are exactly the sort of people who will abuse their discretion. Good government relies on good people and when we know government attracts bad people, the good people must be us, ever vigilant to protect against the bad people. We’ve been lazy and easily corrupted and too willing to let the bad people persuade us they have good intentions – we have not been good people and we’ve gotten the government we deserve.

    Here in Georgia, they’ve introduced a bill to allow citizens to sue the state, stripping the state of an automatic sovereign immunity defense that means the state has to agree to allow themselves to be sued. I’d like to think it’s a start to citizens regaining control of their government, to be able to stop the government when it oversteps its bounds, but I’m cynical enough to suspect that there are some special-interest groups behind this that want to be able to force the government to take certain actions and my guess would be environmentalists and SJW’s are going to have a field day with the power to sue the state.

    1. A lot of state gun restrictions (but those of a minority states, including NY) are based on the erroneous Cruikshank decision that gutted the post-Civil War Civil Rights Act.

      The decisions in the Guest and Price cases following the 1964 Civil Rights Act effectively rendered Cruikshank moot, null and void.

  5. According to longtime libertarian activist Michael Hihn, there’s actually no such thing as a “senseless” gun regulation. In fact, all gun safety laws are common sense and therefore perfectly Constitutional.

    #BanAssaultWeapons
    #UnbanMichaelHihn

    1. “longtime Libertarian”
      I heard Hihn was born as the savior Libertarian who will lead us to the promised land.

      1. I heard he likes to eat shit.

  6. the city claimed that “the mere presence of a handgun—even unloaded, secured in a pistol case, separated from its ammunition, and stowed in the trunk of the car—might pose a public-safety risk in ‘road rage’ or other ‘stressful’ situations.”

    Oh, FFS! In a “road rage” situation “the mere presence” of a *car* might pose a public-safety risk! BAN CARS!!

    1. Hold their beer.

    2. The problem there is that under heightened, and esp under Strict Scrutiny, the justification for laws that would otherwise violate the Fundamental Right being protected must be more than conjecture or hypothesis. That works for Rational Basis analysis, but not with heightened scrutiny. There, you are supposed to have to prove that the law will help prevent the targeted problem, and that it is the least restrictive means to accomplish it. And, indeed, that is the problem with many, If not most, attempts to circumvent the plain strictures of the 2nd Amdt – by trying to justify the restrictions under what can best be thought of as Rational Basis analysis.

      And that is what was attempted here – the trading off of fundamental right of self defense for tens, maybe hundreds of thousands, against the possible chance that fewer people might die as a result of road rage. Even if it were legitimate to trade off those interests (which it really isn’t under increased scrutiny), the trade off would not support the ban. But under Rational Basis analysis, that doesn’t matter, because then the government must merely articulate a rational justification, which doesn’t have to be objectively true. Just merely articulated, which was done here.

      1. Just about all restrictive or prohibitory laws are based upon conjecture or hypothesis.

  7. What’s worse? Blatant abuse of the Constitution (and law abiding citizens) or the SCOTUS turning a blind eye to it.

    Pass Conceal Carry Reciprocity Legislation !!

    1. Worse? Large numbers of Americans eager for a post-Constitutional government.

    2. You could probably win a court case from carrying in a state with another state’s license because of full faith and credit, Article IV.

      1. While that argument should be a slam dunk, that exact argument was made and lost in multiple cases in both New Jersey and New York. And the Supreme Court took a pass at them, declining cert without comment.

        1. I’ve often argued that any state whose concealed carry license isn’t recognized by another state should stop recognizing the second state’s drivers licenses, but give the police “discretion” to only lock up the second state’s politicians and LEOs…

          When it goes to the courts, it will make the second state argue that the drivers licenses SHOULD be recognized, then slap them in the face with the lack of concealed carry license reciprocity. There is no legal basis for treating them differently.

      2. Tennessee recognizes any valid handgun carry permit or license issued by another state whether they reciprocate or not.

    3. The 2nd Amendment does not permit any gun licensing so it’s an infringement of the people’s right to keep and bear Arms.

  8. No. The only laws related to guns that would be Constitutional would be using them to violate someone else’s rights (i.e. robbery, rape, murder, destruction of property, kidnapping, forcing someone to put pineapple on a pizza) or criminal negligence (i.e. leaving it loaded and lying around where young children are or could be, modifying it to randomally fire without pulling the trigger, putting bling on it).

    1. I would say that this about sums it up, except for the bling part. My Gold desert eagle needs diamonds along the slide.

      1. straight gold or does it have the tiger/zebra stripes too?

        1. If you purchased the gun with bling on it specifically because the gawdy piece of trash was less expensive, you’re exempt from the law.

      2. That better be rose gold, Mister.

      3. Hope that you are shooting with gloves. Esp your DE. Okay. There are probably places on a handgun where you could realistically embed diamonds. But putting them anywhere near your hands or holster would probably be ill advised.

        1. Autism is a terrible thing

        2. “Along the slide”. I don’t think he’s putting his hands there.

      4. I must confess that I own a gold plated, rosewood grip .45 revolver.

        My dad won it in a poker game, and gave it to me shortly before his death, so I endure the shame out of sentiment.

    2. “pineapple on a pizza” is highly defensible.
      I draw the line at anchovies.
      But that is if I am ordering the pizza for me.
      You are free to follow your own star.

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  10. Who were the authors of the scheme in the first place? Why aren’t they being made famous over this? They get to be known as the dipshits who actually strengthened 2A by trying so hard to regulate it.

  11. All gun control laws are unconstitutional and therefore illegal.

    1. Yeah I dunno why we needed so many words to get to the point, “shall not be infringed” had it pretty well covered.

  12. The whole point is just to harass legal gun owners with senseless laws until people just give up because it is not worth the hassle.

  13. It’s too bad that liberals don’t dedicate 1/10th the effort they do into ensuring that gay men have a “right” to shoot off in another man’s anus into protecting gun rights.

    1. We’re talking about New York City gun laws and this is where your head goes? Nobody repressing anything around here!

  14. When national socialists get the votes they want, they soon get the Kristallnacht laws and Enabling acts. Hitler’s enabling act speech expressly nullified parts of the German Constitution. Similar social pressure got Nixon to violate the Second Amendment by signing away These States’ 2A rights to keep and bear defenses against incoming nuclear weapons. Libertarians and NRA lawyers turned that situation around. The American language is Germanic, but the Constitution is far from Germanic.

  15. They are only “constitutional” if a judiciary hostile to private gun ownership says so.

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  20. This is such an outrageous infringement of the second amendment that the Supremes are going to take the case and refuse to let N.Y. moot the case by repealing the law.
    Let us hope they find that only strict scrutiny is to be used in any gun law.
    That will likely end all assault rifle bans nationwide

    1. “Let us hope they find that only strict scrutiny is to be used in any gun law.”

      May the courts apply strict scrutiny to all of the BOR.

  21. I don’t see the SC deciding this is moot, NY is pretty clearly changing the laws to just get out of having to go to court, and it’s also pretty clear that they’ll just go back to the old law ASAP if the court calls it moot. The SC, regardless of their political leaning, doesn’t respond well to challenges to their authority or attempts to play them like a fool.

  22. No one anywhere on the face of this Planet has the authority to regulate the private acquisition – having – use : cartage of the oldest through the most modern fire power of the day by any Lawful American Citizen.

    ‘shall not be infringed’ means No One inside or outside of America has the authority to regulate the private having of : acquiring of : bearing of weapons : arms.

    The minute that the concept of shall not be infringed is abridged – trespassed – suppressed Natural Rights no longer exist.

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