HomeLatest ThreadsGreatest ThreadsForums & GroupsMy SubscriptionsMy Posts
DU Home » Latest Threads » Forums & Groups » Main » General Discussion (Forum) » I don't see how (one part...

Wed Jan 16, 2013, 04:56 PM

I don't see how (one part of) the new NY gun law can be constitutional [View all]

Last edited Wed Jan 16, 2013, 07:07 PM - Edit history (4)

Laws that infringe Constitutional rights face a higher level of judicial scrutiny than laws that do not.

A tax on avocados might seem arbitrary and unfair, but if challenged in court it would face minimal scrutiny. If the legislature had any *rational basis,* even an incorrect rational basis, it would be okay. A legislature could say that it reasons that avocados cause cancer. The court would typically say, even if we don't see any evidence of this avocado cancer thing, that is not our job. The legislature has a right to its opinion on avocados and cancer, and the legislature has the power to tax things it thinks cause cancer, as it does with cigarettes.

Now, if we add a constitutional right to avocados the test changes. The legislature no longer has the power to act on a mere notion that avocados cause cancer. The legislature has a burden to show some kind of legitimate state interest sufficiently important to justify diminishing a right.

With the First Amendment the state is supposed to have a compelling interest, and the regulation must be the least burdensome way to advance that compelling interest. That is a high level of scrutiny.

I do not know what level of scrutiny guns laws face under the Heller and McDonald decisions. It seems lower than the first Amendment merits, but has to be higher than an average law because it involves a personal, constitutional right. (That is the state of the law, which is what it is regardless of what you or I think it ought to be.)

As Rachel reported, the new law passed in NY state extends New York's Assault Weapons Ban to include more weapons by requiring only one "military feature." Any gun that is semi-auto with a detachable magazine and that has any one of a list of military features is included in the ban.

The military features list includes flash suppressors and bayonet mounts.

I do not see how a limitation of (state of the law, not me) a constitutional right can face a level of scrutiny so low that a bayonet mount could be the difference between a legal gun and an illegal gun.

A bayonet mount has no reasonable (a word with a meaning in law relating to the process of reason) nexus to any of the state interests the law is supposed to advance. Having or not having a bayonet mount doesn't change the number of people being shot. So I don't see how, in our current legal regime where the 2nd Amendment confers an individual right (subject to reasonable regulation), New York could argue a sufficient state interest in bayonet mounts.

It will be interesting to see how certain existing and new laws play out under Heller/McDonald. If I was a judge, dealing with clear precedent from the Supreme Court that guns are a constitutional right of some sort, I would tend to strike anything from the military features list that was not directly connected to practical killing capacity, which is the justification for the AWB ban. (The state would be able to argue why a given rule was reasonable and I would be open to persuasion, but they have the burden to show that a limitation of a right is a reasonable regulation.)

This is a different legal world from what we had when the AWB was passed in the 1990s.

We will see.

54 replies, 3226 views

Reply to this thread

Back to top Alert abuse

Always highlight: 10 newest replies | Replies posted after I mark a forum
Replies to this discussion thread
Arrow 54 replies Author Time Post
Reply I don't see how (one part of) the new NY gun law can be constitutional [View all]
cthulu2016 Jan 2013 OP
Denninmi Jan 2013 #1
frazzled Jan 2013 #3
dkf Jan 2013 #8
frazzled Jan 2013 #11
cthulu2016 Jan 2013 #22
Fla_Democrat Jan 2013 #38
Leaning Left Jan 2013 #18
frazzled Jan 2013 #20
Nuclear Unicorn Jan 2013 #25
frazzled Jan 2013 #28
phillipstd Jan 2013 #32
Nuclear Unicorn Jan 2013 #42
cthulu2016 Jan 2013 #43
spin Jan 2013 #54
rl6214 Jan 2013 #50
alcibiades_mystery Jan 2013 #5
d_r Jan 2013 #2
flamin lib Jan 2013 #4
hack89 Jan 2013 #13
flamin lib Jan 2013 #14
hack89 Jan 2013 #16
Hugabear Jan 2013 #6
krispos42 Jan 2013 #9
flamin lib Jan 2013 #15
cthulu2016 Jan 2013 #33
samsingh Jan 2013 #53
Nye Bevan Jan 2013 #7
Leaning Left Jan 2013 #35
cthulu2016 Jan 2013 #37
jmg257 Jan 2013 #10
Tx4obama Jan 2013 #12
Leaning Left Jan 2013 #17
RomneyLies Jan 2013 #26
Recursion Jan 2013 #31
Lex Jan 2013 #41
Leaning Left Jan 2013 #19
aandegoons Jan 2013 #21
Leaning Left Jan 2013 #23
jmg257 Jan 2013 #40
JoePhilly Jan 2013 #24
onenote Jan 2013 #34
JoePhilly Jan 2013 #39
onenote Jan 2013 #46
JoePhilly Jan 2013 #47
onenote Jan 2013 #48
Leaning Left Jan 2013 #27
bongbong Jan 2013 #29
Recursion Jan 2013 #30
Leaning Left Jan 2013 #36
Leaning Left Jan 2013 #44
jmg257 Jan 2013 #52
Leaning Left Jan 2013 #45
Comrade_McKenzie Jan 2013 #49
elleng Jan 2013 #51