Strength of 2nd amendment?

[DominionSeraph]

So I live in NJ... I applied for a firearms purchasers ID and a permit for a hand gun.. If that is turned down for whatever reason, and I buy a gun anyway and register it... am I protected by federal law?

Federal law does not grant you unlimited access to ownership. If, say, you are mentally ill with a history of shooting people, SCOTUS is unlikely to rule that the 2nd Amendment overrides the state's abiding interest in keeping a gun out of your hands.

Hell, look at the First Amendment: Incitement to riot, disturbing the peace, harassment, obscenity, libel/slander, copyright infringement, conspiracy, obstruction of justice, perjury, contempt of court, fraud, threatening; all are not protected.

 

[alkemyst]

Ummm, so people are dumb because they think they still need guns?
Or they are dumb because the Govt. tells us guns are bad and we believe it?

the latter of course.

People still believe their TV channels and newspapers are also politically unbiased.

 

[spidey07]

Federal law does not grant you unlimited access to ownership. If, say, you are mentally ill with a history of shooting people, SCOTUS is unlikely to rule that the 2nd Amendment overrides the state's abiding interest in keeping a gun out of your hands.

Hell, look at the First Amendment: Incitement to riot, disturbing the peace, harassment, obscenity, libel/slander, copyright infringement, conspiracy, obstruction of justice, perjury, contempt of court, fraud, threatening; all are not protected.

Right. Which is why the McDonald ruling is so important. The 2nd is to be treated exactly as the 1st. If the county/state cannot prove there is direct harm then the law is unconstitutional.

Now you have to prove that a citizen owning a firearm, with strict scrutiny, causes harm. It is now classified as a "fundamental civil right", the 2nd was incorporated via the 14th.

 

[shortylickens]

the latter of course.

People still believe their TV channels and newspapers are also politically unbiased.

Ahhh, thanks for clarifying.

 

[Zenmervolt]

Because of a supreme court ruling this year prohibiting you from owning a firearm is a civil rights violation. The 2nd amendment has been incorporated and violating it at the state level is illegal. The concept of strict scrutiny is also being brought up which basically means if the state can't come up with a very specific purpose for going against the 2nd amendment, they can't make a law against it - just like the 1st.

With that being said, you'd need some good lawyers to take the case with your state's laws to the supreme court. The 2nd amendment foundation may even do the case for you.

Learn more here:
http://www.saf.org/

*sigh*

Short Answer:

You're wrong.

Long Answer:

Neither the Heller nor the McDonald decisions mandate strict scrutiny of firearms regulations. All the decisions do is state that blanket bans are not compatible with the US Constitution. The decisions allow for "reasonable restrictions", but do not specify any particular level of scrutiny. To suggest that either Heller or McDonald mandates strict scrutiny is at best an error, or at worst an intentional misrepresentation. Regardless, the statement remains flatly wrong.

It is virtually inconceivable that the US Supreme Court, (and, therefore, US District Courts as well) would invalidate a licensing scheme, especially as the Heller decision contains dicta stating, "the District’s law is permissible so long as it is 'not enforced in an arbitrary and capricious manner.'" As long as NJ enforces their licensing requirements in an objective manner and as long as those requirements do not constitute a blanket ban, there is virtually no chance that the OP would be protected on Constitutional grounds.

The proper legal remedy in this case (assuming that the rejection of his license application was in violation of the objective standards used by NJ) would be to appeal the rejection through the NJ court system. If the OP believes that his application was denied for reasons relating to "arbitrary or capricious" decisions on the part of the issuing authority, he may then have a case that could go through Federal Court, though he should not buy a firearm in violation of NJ law, but rather pursue the suit on the basis of the licensing rejection rather than on the possession of an unlicensed firearm. Being denied the license should be itself sufficient to create standing if the OP can produce sufficient evidence of "arbitrary or capricious" enforcement of the NJ licensing requirements.

ZV

(I am not a lawyer and this is not legal advice.)

 

[spidey07]

The subject of strict scrutiny is being brought up and is the next challenge to go before the courts. So it's not an outlandish interpretation, it's part of the bigger plan. Being declared a "fundamental civil right" opens the door to strict scrutiny.

See here:
http://saf.org/viewpr-new.asp?id=338

 

[brandonb]

That's just like saying the government IS the people, the army IS the people, the fire fighters ARE the people... but if the amendment says the right to bear arms for fire fighters, you aren't going to have any argument either.

Like you said, "at the time of the writing" is the key phrase here. Context is everything. Militias don't exist in the context of this nation any longer. The 2nd amendment might one day have meaning again, but not today.

I find it hilarious you tell me to get a clue when it's such an obvious contextual issue and the only reason it gets controversy is because people cry if they can't have lethal weapons, which is ridiculous. Anyone that understands basic English can figure this one out, and half the people in charge know this.

I love how you bring up context. Let's go with that. What were we? A colony of England? What did we do? Did we revolt? Have a boston tea party? What were we? A bunch of citizens fighting against the british army (the current government at the time)? Remember that? I do!

So with that context. How does our people remain free? How do we fight against our government in case we need to have a revolt, or a boston tea party version 2.0? The people need to have arms to use against their own governments army. The amendment was created as a means to make sure the government could not oppress the citizens by denying them the right to fight against the government. The second they remove our ability to fight, that is the second we need our 2nd amendment rights.

That is the context of the 2nd amendment.

 

[daishi5]

I'm just saying that the current standard SCOTUS rulings concerning gun rights and gun laws is rather new, and quite anathema to how SCOTUS generally interpreted 2nd amendment for some 60-70% of its history. It's a result of the anger over civil rights and such, and especially the court of the 50s-70s, now demonized by the right as one of the darkest periods (having given us all of these personal, individual, social freedoms and such. ...of course they'd hate that. ), Nixon then Reagan flooding the federal courts with far-right thinkers, the newer interpretations of gun laws became more common.

The NRA also didn't have as strong of a lobby before this time.

That is kind of funny, the early rulings on the 2nd amendment and the 14th as it relates to the 2nd, were mostly against black people. I really don't like the SC history of decisions about the 2nd, most specifically cruikshank and miller.

 

[zinfamous]

I love how you bring up context. Let's go with that. What were we? A colony of England? What did we do? Did we revolt? Have a boston tea party? What were we? A bunch of citizens fighting against the british army (the current government at the time)? Remember that? I do!

Oh I doubt that. :hmm:

Who are you, Ponce de Leon?

 

[zinfamous]

That is kind of funny, the early rulings on the 2nd amendment and the 14th as it relates to the 2nd, were mostly against black people. I really don't like the SC history of decisions about the 2nd, most specifically cruikshank and miller.

I'm just saying...SCOTUS has a much longer history of favoring gun control/restriction, higher regulation that it does interpreting this as a fundamental right.

Whichever way they've used it...:sneaky:

 

[Saint Nick]

What is the strength of the Constitution?

 

[Taughnter]

So I live in NJ... I applied for a firearms purchasers ID and a permit for a hand gun.. If that is turned down for whatever reason, and I buy a gun anyway and register it... am I protected by federal law?

Short answer: No

Long answer: As pointed out below, the 2nd Amendment has not (yet) been interpreted to mean that ANY restriction on firearms is unconstitutional, merely that blanket bans are unconstitutional. In fact, Washington D.C. implemented new restrictions which were later challenged and upheld by a federal district court. "Reasonable restrictions" are allowed, NJ has some of the strictest restrictions, but I won't go so far as to say that I'm qualified to say whether they are reasonable or not. If I had to guess, based on the way other cases have been decided, NJ's restrictions are going to stand.

Of course, in order to challenge it, someone would probably have to have their permit application rejected OR have been arrested for unlawfully possessing/purchasing a firearm. The only way to be absolutely sure is to go ahead and try it and if you win your case in federal court then the answer turns into a yes.

FWIW, I AM an attorney in NJ. This doesn't make me any sort of expert on firearm permits here, but I have read a little bit about the application process here to help a few of my friends apply. My two main observations: a) NJ's rules suck if you want to own a handgun and b) You're an idiot if you try to circumvent the rules. It would be cheaper to just move to Pennsylvania (compared to the legal battle that would follow).

The content of this thread should not be construed as legal advice in NJ or elsewhere. I do NOT recommend you purchase guns and then bring them into NJ without a permit (and for that matter, if you're not familiar with the federal and local laws regarding gun possession, I'd suggest you don't attempt to purchase or possess any guns at all).

 

[Malak]

I love how you bring up context. Let's go with that. What were we? A colony of England? What did we do? Did we revolt? Have a boston tea party? What were we? A bunch of citizens fighting against the british army (the current government at the time)? Remember that? I do!

So with that context. How does our people remain free? How do we fight against our government in case we need to have a revolt, or a boston tea party version 2.0? The people need to have arms to use against their own governments army. The amendment was created as a means to make sure the government could not oppress the citizens by denying them the right to fight against the government. The second they remove our ability to fight, that is the second we need our 2nd amendment rights.

That is the context of the 2nd amendment.

But you are just making things up here, basing assumptions on what others have told you and not what the reality is. Read the 2nd amendment, again. It has nothing to do with anything you just said.

Your little history lesson only reveals that the people who started this country were terrorists. You don't actually think a violent revolt over taxes is the right thing to do, do you? Because if you do, you are the reason why people shouldn't have guns.

 

[nick1985]

But you are just making things up here, basing assumptions on what others have told you and not what the reality is. Read the 2nd amendment, again. It has nothing to do with anything you just said.

Your little history lesson only reveals that the people who started this country were terrorists. You don't actually think a violent revolt over taxes is the right thing to do, do you? Because if you do, you are the reason why people shouldn't have guns.

It has everything to do with what he said, and the Supreme Court agrees.

 

[brandonb]

But you are just making things up here, basing assumptions on what others have told you and not what the reality is. Read the 2nd amendment, again. It has nothing to do with anything you just said.

Your little history lesson only reveals that the people who started this country were terrorists. You don't actually think a violent revolt over taxes is the right thing to do, do you? Because if you do, you are the reason why people shouldn't have guns.

Yep. I do...

*hugs my guns*

Go hide under your bed, and wait for the government to come save you.

 

[Zenmervolt]

The subject of strict scrutiny is being brought up and is the next challenge to go before the courts. So it's not an outlandish interpretation, it's part of the bigger plan. Being declared a "fundamental civil right" opens the door to strict scrutiny.

See here:
http://saf.org/viewpr-new.asp?id=338

Are you at all familiar with the American legal process? In any way, shape, or form? Do you at least know what an Amicus brief is?

The courts aren't required to read Amicus briefs even if they choose to accept them, let alone give the briefs any persuasive weight. The USSC has twice had the opportunity to opine on the necessity of strict scrutiny (in Heller and in McDonald) and has studiously avoided any hints at the level of scrutiny required, both in the holdings proper and in dicta. Any ruling from the 9th Circuit which specifies any particular standard of review is almost a guaranteed appeal. Given the history of the Nordyke case, it's very clear that the 9th Circuit is interested in avoiding having the case proceed any further; they emphatically do not want an appeal. As such, it's virtually guaranteed that, whatever their ruling may ultimately be, it will not be based on any specific level of scrutiny. What seems likely is that they will do what the USSC did in Heller and state that their decision holds under "any" level of scrutiny and leave it at that.

ZV

 

[spidey07]

McDonald opened the door to strict scrutiny by declaring it a fundamental right. That was the biggest deal with that case regardless of anything else.

This is a process, a chess game whereby the SAF is systematically toppling unconstitutional laws. It will happen. The precedent is being built case by case.

 

[Zenmervolt]

McDonald opened the door to strict scrutiny by declaring it a fundamental right. That was the biggest deal with that case regardless of anything else.

This is a process, a chess game whereby the SAF is systematically toppling unconstitutional laws. It will happen. The precedent is being built case by case.

I understand that you think it should happen. Frankly, I'm inclined to agree that it should happen.

However, objective analysis of the case simply does not support any assertion that strict scrutiny is likely to be adopted in Nordyke. The 9th Circuit is incredibly concerned with consistency with existing USSC opinions and it's ridiculously unlikely that they would risk having the case overturned by going out on a limb and specifying a level of scrutiny when the USSC has thusfar studiously avoided mandating any specific level of scrutiny.

All of that aside, strict scrutiny is not currently the law and it's incredibly irresponsible to phrase things as you have and to advise the OP, as you have, that he would be covered by the 2nd Amendment.

Bluntly, if you were a lawyer and you gave the advice you've given in this thread in that capacity, I think it would very likely constitute malpractice.

Also, from a strictly accurate standpoint, neither McDonald nor Heller declared firearms ownership to be a "fundamental right". Heller merely stated that the ownership of a handgun for purposes of self-defense in one's own home was protected by the 2nd Amendment while McDonald simply incorporated the Heller decision via the 14th Amendment (albeit with a very interesting concurring opinion from Thomas that suggests the Privileges and Immunities clause may not be as dead as some have thought). Neither decision declared firearm ownership in general to be a "fundamental right".

Look, I'm a gun owner myself; I understand the desire to see these cases as being more than they are. The objective facts, however, make your positions untenable. You're reading far more into the cases than is actually there and you're being unreasonably optimistic about the chances for the 9th Circuit (a court who vacated a previous Nordyke decision out of concern that it might be inconsistent with the then-future USSC ruling in McDonald) will go beyond what the USSC has explicitly stated in Heller and McDonald. You're failing to ground your opinions in reality simply because you desire a certain outcome.

ZV

 

[spidey07]

Zenmervolt,

I told you it was coming. It's a fundamental civil right.

http://saf.org/viewpr-new.asp?id=346

The Second Amendment Foundation today filed suit in U.S. District Court for the District of New Jersey against several New Jersey officials for deprivation of civil rights under color of law.

SAF is joined in the lawsuit by the Association of New Jersey Rifle & Pistol Clubs, Inc. and six private citizens whose applications for permits to carry have been denied generally on the grounds that they have not shown a “justifiable need.” One of the plaintiffs is a kidnap victim, another is a part-time sheriff’s deputy, a third carries large amounts of cash in his private business and another is a civilian employee of the FBI in New Jersey who is fearful of attack from a radical Islamic fundamentalist group. Plaintiffs are represented by attorneys David D. Jensen and Robert P. Firriolo with the firm of Duane Morris, LLP in Newark.

 

[amddude]

Zenmervolt,

I told you it was coming. It's a fundamental civil right.

http://saf.org/viewpr-new.asp?id=346

I wonder what the legislative landscape will look like in 20 years regarding guns. The future looks bright or at least a lot brighter than it was.

 

[spidey07]

I wonder what the legislative landscape will look like in 20 years regarding guns. The future looks bright or at least a lot brighter than it was.

That's why the McDonald ruling this year was so huge. It finally settled the 2nd amendment as a fundamental civil right.

 

[torpid]

Zenmervolt,

I told you it was coming. It's a fundamental civil right.

http://saf.org/viewpr-new.asp?id=346

Doesn't seem to disagree with what he wrote. It is already known to be a fundamental right. At issue is what sort of measures of restriction are reasonable. I agree that more restrictions / registration / licensing rules are likely to be more scrutinized now, but I don't think all of them are invalid as was stated earlier in the thread.

 

[Zenmervolt]

Zenmervolt,

I told you it was coming. It's a fundamental civil right.

http://saf.org/viewpr-new.asp?id=346

So much fail in trying to use this as proof you're right.

1) Filing a lawsuit doesn't make someone right.

2) The suit challenges the concealed carry licensing system on the grounds that it is enforced arbitrarily; this thread is discussing ownership licensing. The suit isn't even on point.

3) I have already pointed out that a regulation is only permissible, "so long as it is 'not enforced in an arbitrary and capricious manner'" per the Heller decision, so someone filing a suit claiming that a regulation is indeed "enforced in an arbitrary and capricious manner" actually supports the much more nuanced information I've provided.

I say again, if you were a lawyer and you gave the advice you're currently giving, it would almost certainly be malpractice.

ZV

 

[sourceninja]

My 2nd amendment stance has changed. I used to be for no license open carry and licensed concealed carry.

Now I want a rigorous testing system in place for carry (similar to a driver's license).

I have a lifetime carry permit in my state. I never need to renew it, I didn't have to take any tests and it cost me a total of $150.00. I encouraged my friends to do the same. One friend (who I thought was well adjusted and responsible) took me up on it.

Not less than 2 weeks after getting his permit, he tells me a story about driving home drunk, uninsured, and armed. He laughs that he got pulled over for speeding and the officer did not notice he was drunk and gave him ticket. He thought this was funny and almost seemed proud.

The man doesn't deserve to own a gun. I'm pissed off. I just hope they take his license away when he goes to pay the ticket and can't prove he has insurance.

 

[JeffreyLebowski]

But it isn't wrong. Like I said, people QQ too much about the possibility of it being illegal to own a firearm. There is no logical reason that makes my argument invalid.

Plenty of logical and factual reasons are given. People like you just don't listen because it destroys your false beliefs.
As typical with people that are anti-gun, you'll lie, deny, and falsify to get your way.
Like I stated earlier. The Bill of Rights grants rights to the people, not the government. You can try to spin it any way you want but that is the short simple answer.