Notably, O'Connor applied strict scrutiny:
In the wake of the Supreme Court’s 2008 decision in District of Columbia v. Heller, which did not endorse any specific level of scrutiny for future Second Amendment cases, gun rights advocates have been urging the lower courts to practice strict scrutiny whenever appropriate.
Here's the PDF of the opinion,
Mance v. Holder. Excerpt:
Defendants argue that the federal interstate handgun transfer ban imposes only minimal burdens, so heightened scrutiny is not warranted…. Defendants rely on the Second Circuit’s opinion in United States v. Decastro, 682 F.3d 160, 166-67 (2d Cir. 2012), which held that heightened scrutiny is reserved for regulations that “substantially” burden the Second Amendment right…. Under this standard, a plaintiff may rebut the presumption that a longstanding regulation is presumptively lawful by showing that the regulation has more than a de minimis effect upon his right; “[a] requirement of newer vintage is not, however, presumed to be valid.” [Heller v. District of Columbia, 670 F.3d 1244, 1253 (D.C. Cir. 2011)]. As discussed above, the federal interstate handgun transfer ban is not longstanding, making the de minimis standard inappplicable….
At its core, the Second Amendment protects law-abiding, responsible citizens. Instead of limiting the federal interstate handgun transfer ban to a discrete class of people, it prevents all legally responsible and qualified individuals from directly acquiring handguns from FFLs [federal firearms licensees] in every state other than their state of residency and the District of Columbia…. To obtain a handgun from an out-of-state [ retailer, the federal interstate handgun transfer ban imposes substantial additional time and expense to those who desire to purchase one. Restricting the distribution channels of legal goods protected by the Constitution to a small fraction of the total number of possible retail outlets requires a compelling interest that is narrowly tailored. See Carey [ v. Population Servs. Int’l, 431 U.S. 678, 689 (1977)], [United States v.] Marzzarella, 614 F.3d [85, 94] (“[I]nfringements on protected rights can be, depending on the facts, as constitutionally suspect as outright bans.”). The Court, therefore, applies strict scrutiny—that is, the law must be narrowly tailored to be the least restrictive means of achieving a compelling government interest. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010).
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63 comments:
Can't wait til I can get guns via Amazon!!
To obtain a handgun from an out-of-state [ retailer, the federal interstate handgun transfer ban imposes substantial additional time and expense to those who desire to purchase one.
Huh - just like getting an identity card to register to vote. Same people oppose both, I expect?
Using state boundaries to create different fundamental rights for citizens on each side of such map lines is abhorrent. Equal rights for all US citizens, even though they made the mistake of living in a hellhole like DC.
This issue boils down to who serves who. We were uniquely founded as a country where citizens were intended to have more power than the government.
If federal agents can have one, I should be able to have one. Whatever it is. That goes for politicians bodyguards. They are not meant to be considered more than the people they serve.
And before someone brings up the armed forces note that they are made up of people serving the country. Usually in foreign lands. I am not arguing people should have tanks and nukes. Don't bring them into this.
To be more specific, I once bought a $89 "surplus" rifle from a dealer in Arkansas. The shipping fee was $20. The transfer fee from the first dealer to the second was $25. The transfer fee from the second dealer to me was an additional $25. So approximately 25% of the cost was an interstate transfer fee.
That's substantial all right.
-XC
Same people oppose both, I expect?
Partisan hacks on either side tend to split on those two issues, but those of us in the middle tend to be opposed to an overbearing burden of regulations on any of our basic rights, regardless if it is the right to vote or the right to bear arms.
Achilles said...
If federal agents can have one, I should be able to have one. Whatever it is.
Hookers for everyone!
Hookers for everyone!
Why are you bringing up Scott Walker's visit to England?
Tho, in all fairness, Walker didn't say hookers for "everyone". Instead he made it sound as if he was seeking one only for himself.
You don't just have the right to vote. Each citizen has the right to vote once.
Those charged with ensuring a fair and legal election need a way to determine if the individuals who show up at polling places are eligible to vote and whether they have already voted or not.
How do you propose they do that without ID?
If the second amendment means anything at all it means that I have the right to be at least as well armed as any agent of government.
Get away from me with your stupid extrapolations to do with nukes or artillery pieces. Gun grabbers are not interested in my artillery piece. They want my pistol and my rifle and my shotgun. They are the roach in encroacher.
Across the years I've become an absolutist on this, and other, constitutional rights. The second amendment is my gun permit, the first is my speech permit, and so on. No "reasonable" exceptions. Compromise and they'll turn you into a serf one reasonable exception at a time.
How do you propose they do that without ID?
Same thing with firearms - it is illegal for felons and the mentally ill to purchase a firearm so how do they accomplish that without requiring an ID?
I'm not opposed to idea in general, rather the devil is in the details. Some of the "Voter ID" laws have been crafted to make it more difficult for some groups while making it easier for others. (For example, student IDs from the State Univ aren't allowed to be used as an ID to vote but a Concealed Carry Permit is).
Tho, you raise an interesting question: How did they do it before ID's were generally available? Were the first hundred or so years of our country's elections nothing but a farce due to overwhelming and widespread fraud?
The second amendment is my gun permit, the first is my speech permit, and so on. No "reasonable" exceptions. Compromise and they'll turn you into a serf one reasonable exception at a time.
So you stand with the Solidarity Sing-a-long?
Small point of fact - you can, in fact, own a fully automatic rifle "just like the feds." You can also own a silencer "just like the CIA."
You just have to be wealthy for the first and patient for the second.
A fully automatic M-16 runs $20K+ and the wait for the right to buy a tax stamp to get a silencer (ok, suppressor) can run past a year.
I believe the latter is the result of staffing, but the first is because of legislation.
I think that should be the next thing to go. Frankly the cost of ammo is the biggest barrier to fully auto these days...
-XC
PS - Think about how hard it will be to print a fully auto AR sear...
Althouse said...
Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010).
Oh, I'll just leave this here... <whistling>
"Same thing with firearms - it is illegal for felons and the mentally ill to purchase a firearm so how do they accomplish that without requiring an ID?"
Nothing in the judge's opinion said you couldn't be required to show an ID; merely that the state that issued the ID was irrelevant.
Madisonfella for the LIE. As usual.
To obtain a handgun from an out-of-state retailer, the federal interstate handgun transfer ban imposes substantial additional time and expense to those who desire to purchase one.
Huh - just like getting an identity card to register to vote. Same people oppose both, I expect?
Sure, if I were registering to vote in my state of residence in another state. Other than that though - yeah, exactly alike.
@madisonfella
To buy a gun online you have to meet all the same requirements you would in any gun shop. The don't just mail it to your house or PO Box no questions asked.
Some ID's are accepted because they inherently more reliable than others. A lot more checking goes into a Concealed Carry Permit than goes into some Student ID's.
I'm sure there was a lot of fraud in early elections, but we have ID's now.
Strict scrutiny holds the government to a higher standard. Since the size, power and reach of the government has grown so large, the courts should now strictly scrutinize the government's actions in all issues involving individual rights.
Madisonfella wrote:
"but those of us in the middle tend to be opposed to an overbearing burden of regulations on any of our basic rights, regardless if it is the right to vote or the right to bear arms."
Which part of the Bill of Rights guarantees your right to vote, madisonfella?When was the last time you voted for a USSC justice? Ever voted for an FCC commissioner?
Effective self-defense is a human right. Voting is a political right.
FWIW, he said the law failed to pass constitutional muster with intermediate scrutiny, too. So he pretty much rejected every argument that Holder & Co put forward.
"those of us in the middle tend to be opposed to an overbearing burden of regulations on any of our basic rights..." I think pretty much all of us are opposed to an overbearing burden on voting rights. I asked about getting an ID card. That is not an overbearing burden.
Madisonfella for the LIE. As usual.
Your accusation about me lying is a lie, as usual. In your haste to apply the tar and feather you completely missed what was actually stated.
I never said a judge ruled that no ID was required, rather I was explaining why in my opinion an ID should be required for either voting and/or purchasing a firearm.
Good to see someone rolling back the 1960s authoritarian laws.
Gun rights and gay rights. Justice Kennedy is the closest thing to a libertarian on the Court.
but we have ID's now
But not everyone does. Especially the "special" ID's that the state says are the only valid ones when it comes to voting. That is the entire issue with Voter ID.
Plus paper & plastic identification is too easy to get lost, be forged, have stolen, or get misplaced to be used for something as important as voting. It would be far easier and much more secure for every citizen to have a microchip implanted that will be able to ID people for life. Not only will that make it easier to detect fraud in the voting booth it will also help solve the illegal immigrant problem.
I asked about getting an ID card. That is not an overbearing burden.
Depends on the ID card and the person. There are many examples of people being unable to obtain the special IDs needed in order to vote.
As long as the background check stays, why not get ones guns through Amazon?
Or buy them in Utah, or Mississippi, or Ohio?
One's 2nd Amendment rights don't disappear when driving across state lines.
Implants would make it too easy for space aliens to affect the outcome of earthling elections. I'm against it!
General Gage dispatched LTC. Francis Smith with 700 men to Lexington and Concord in April 1775, it was to seize or destroy what we now call "crew served" weapons, light cannons, owned by the colonial militia.
Considering the proximity of the Revolutionary War to the 2nd amendment's adoption, it is certainly reasonable to believe it was ratified by the states with the understanding that it was not limited to flintlock muskets or rifles.
madisonfella said...
but we have ID's now
But not everyone does. Especially the "special" ID's that the state says are the only valid ones when it comes to voting. That is the entire issue with Voter ID."
Some states issue them to illegal aliens-they are called driver's licenses. Can also be used to apply for welfare benefits. Why is it that Democrats need to have every possible sketchy vote in order to win? Is it because they can't get enough actual citizens in full possession of their civil rights to vote for them?
OpenID madisonfella said...
I asked about getting an ID card. That is not an overbearing burden.
Depends on the ID card and the person. There are many examples of people being unable to obtain the special IDs needed in order to vote.
2/12/15, 10:09 AM"
Yet they manage to find the right ID to get government "entitlements" .
MikeR said...
To obtain a handgun from an out-of-state [ retailer, the federal interstate handgun transfer ban imposes substantial additional time and expense to those who desire to purchase one.
Huh - just like getting an identity card to register to vote. Same people oppose both, I expect?
Apples and submarines.
"Some states issue them to illegal aliens-they are called driver's licenses."
Can those DL's be used as ID to vote, I wonder?
(For example, student IDs from the State Univ aren't allowed to be used as an ID to vote but a Concealed Carry Permit is).
Anybody can get a student ID.
Bob Boyd said...
"Some states issue them to illegal aliens-they are called driver's licenses."
Can those DL's be used as ID to vote, I wonder?
In Illinois they can. As a matter of fact Chicago and Cook County count on it.
madisonfella said...
but we have ID's now
But not everyone does. Especially the "special" ID's that the state says are the only valid ones when it comes to voting. That is the entire issue with Voter ID.
Plus paper & plastic identification is too easy to get lost, be forged, have stolen, or get misplaced to be used for something as important as voting. It would be far easier and much more secure for every citizen to have a microchip implanted that will be able to ID people for life. Not only will that make it easier to detect fraud in the voting booth it will also help solve the illegal immigrant problem.
Are you volunteering? Let us know how that works out.
FWIW, he said the law failed to pass constitutional muster with intermediate scrutiny, too. So he pretty much rejected every argument that Holder & Co put forward.
It was a pretty strong opinion. He first determined whether intermediate or strict scrutiny would apply. Decided that strict scrutiny was appropriate, then found that the law violated the 2nd Amdt. both facially and as applied. Then, did the same for intermediate scrutiny. Then, went on and found that it also violated the Equal Protection implied in Due Process under the 5th Amdt., by applying strict scrutiny, based on the suspect class being state residency. In other words, he threw it out five different ways.
The interesting thing to me was that the Defendants (Holder, et al.) pointed to Congressional testimony on the need for the law - that at that time, people were crossing state lines to buy guns that they couldn't buy in their original state. And, had some statistics from that time. But, Congress went on to pass legislation that requires that any such buyers be run through NICS, etc., which would presumably detect such situations. Burden was on the Defendants to update their statistics, etc. (since either strict or intermediate scrutiny was being applied) to show that the problem still existed. They failed to do so. The judge rightly, in my view, pointed out that under heightened scrutiny, it isn't sufficient to show a rational reason by Congress, but also to show that the law must actually advance it (and, of course, with strict scrutiny, be the least restrictive means to do so).
I think that it is pretty clear that the opinion was written with the expectation that it will be reviewed on appeal by the 5th Circuit.
Anybody can get a student ID.
"Anybody"?
Please prove your theory by posting a picture of your student ID, recently issued, from both UW-Madison and Marquette Univ.
Yet they manage to find the right ID to get government "entitlements"
You assume the same forms of ID are needed for both. You assume wrong.
This is why we need a federally issued national ID, preferably one that can't be stolen nor lost, that can be used for all government interactions.
Bob Boyd said...
"Some states issue them to illegal aliens-they are called driver's licenses."
Can those DL's be used as ID to vote, I wonder?
2/12/15, 10:38 AM"
Maybe I'm wrong but I have never heard of a situation where a state issued drivers license has been exempted by the state of issuance for identification purposes within that state.
A pipe dream but perhaps if and when there is a republican congress and president a constitutional amendment is passed by congress and sent to the states limiting all voting and all taxpayer funded entitlements to citizens of the United States. I doubt that even in Blue States that wouldn't pass.
Madisonfella wrote:
"But not everyone does. Especially the "special" ID's that the state says are the only valid ones when it comes to voting. That is the entire issue with Voter ID."
No, it is not.
The number of people who cannot overcome a minor burden to vote -- the same burden they would face in boarding an airplane or cashing a refund check - is small. The people who will be enabled to vote illegally if that burden is removed is huge.
This is why liberals oppose voter ID. It makes it harder to steal elections. They don't give a damn about the poor.
madisonfella said...
Yet they manage to find the right ID to get government "entitlements"
You assume the same forms of ID are needed for both. You assume wrong.
This is why we need a federally issued national ID, preferably one that can't be stolen nor lost, that can be used for all government interactions.
2/12/15, 11:18 AM"
Federal ID is a diversion. But if you want one, its called a passport or a Global Entry card will do.
So tell me again how one applies for entitlement programs with a state funded component without a photo ID such as a driver's license?
Dear Ms. Althouse,
A while back we had a very brief exchange in re scrutiny. I still maintain that there should be no question that strict scrutiny should be applied whenever a matter touches directly on Constitutional text.
Regards,
Roy
p.s., The new "I'm not a robot" feature - no, I don't use that kind of language.
(For example, student IDs from the State Univ aren't allowed to be used as an ID to vote but a Concealed Carry Permit is).
Unless they've changed, student IDs don't show the student's citizenship at the federal or state level. Foreign students and out of state students get IDs. If a student ID were sufficient to register to vote, then you would be allowing people who don't have a legal right to vote cast ballots. Out of state students could still vote absentee in their home state and vote in the state where they're attending college. That undermines the voting rights of everyone else.
Have the Courts ever reached a conclusion that "Strict Scrutiny" applies, applied it and determined that everything was okay, no problem here, move along?
"There are many examples of people being unable to obtain the special IDs needed in order to vote." That seems unlikely. If there are such cases, they will be unusual. GOTV have always sent people out to drive them to vote, and they could help with this as well. It's motivated reasoning to call that an "overbearing burden".
So you stand with the Solidarity Sing-a-long?
I wouldn't go sing with them snice they're a bunch of butt holes creating a nuisance. But I wouldn't restrain them either. Neither would I restrain felons from gun possession. Felons are often butt holes and nuisances but gun grabbers are more dangerous than armed felons and bigger butt holes as well. Speech in the mouths of commies and grifters is sacrosanct for similar reasons.
So you stand with the Solidarity Sing-a-long?
I wouldn't go sing with them snice they're a bunch of butt holes creating a nuisance. But I wouldn't restrain them either. Neither would I restrain felons from gun possession. Felons are often butt holes and nuisances but gun grabbers are more dangerous than armed felons and bigger butt holes as well. Speech in the mouths of commies and grifters is sacrosanct for similar reasons.
The number of people who cannot overcome a minor burden to vote -- the same burden they would face in boarding an airplane or cashing a refund check - is small
You say that as if an ID is always required to board a plane. You say that as if the same type of ID needed to vote is the same ID needed to cash a check. While your claim is a common misconception, what you're saying isn't correct.
So tell me again how one applies for entitlement programs with a state funded component without a photo ID such as a driver's license?
Depends on the program.
Here is what is says in regards to food stamps:
"Do I need a photo ID to get food stamps?
No! You do need to
prove your identity to the food stamp office. There are a number of
ways to do this including using a collateral contact such a shelter
worker to verify who you are. You should not be denied food
stamps solely because you lack a photo ID.
Are you suggesting that people (and their families) who lack a driver's license or other photo ID should be denied assistance until they obtain one?
"This is why we need a federally issued national ID, preferably one that can't be stolen nor lost, that can be used for all government interactions."
Putting aside issues of liberty and federalism, once you put all your identity eggs into that one basket, it just takes one hack or breach to bring down everything. For a fraudster or illegal alien, you'd just need to obtain a bogus version of that one card, and then everything else would be open and accessible. And no matter how good you think the security is, there's always one data-entry tech who can be corrupted. Or one Chinese hacker unit that can crush the security measures.
Our current, clunky, messy, slow, analog, annoying ID regimes to provide a certain amount of security by redundancy and inertia. Sometimes the "perfect solution" is just the perfect fail wiating to happen.
@madisonfella
Thanks for the info - very enlightening. I am now convinved that there is even more fraud and abuse in government "entitlement" programs than I had previously thought.
And of course, one you're registered for one program (food stamps) then you are automatically eligible for others (Obamaphone).
Such nice things to think about while I am putting my taxes in order and figuring out how big a check I will have to cut to pay for all this.
OpenID madisonfella said...
Anybody can get a student ID.
"Anybody"?
Please prove your theory by posting a picture of your student ID, recently issued, from both UW-Madison and Marquette Univ.
Sure. You pay for my travel and lodging expenses.
On the other hand, to get back to your main premise that it is just as easy to get CCP as a student ID. To get a student ID all I have to do is register for classes. It's a little more complicated to get a CCP.
You can get a Texas DL in less than an hour if you have a valid DL from another state. Even your temp license has your photo and serves as a photo ID for voting. You have a 60 day window to get a Texas DL when moving here.
In the last election, a woman tried to vote in Texas using a California DL. She had been in Texas more than 60 days. She was not allowed to vote and threatened with a citation, but not given one, for violating the 60 day rule. She went on social media to complain about what nasty meanies the Texas authorities were. What do you want to bet which way she would have voted?
BTW, I have a valid photo ID from Clemson University, even though I have not been there in over ten years. Should either South Carolina or Texas allow me to vote using it?
Putting aside issues of liberty and federalism
IDs are anti-liberty? Interesting theory
Our current, clunky, messy, slow, analog, annoying ID regimes to provide a certain amount of security by redundancy and inertia
It also makes it so many people are denied their basic right to vote. We have the technology to make things better, if we want to.
Thanks for the info - very enlightening
Google is a wonderful tool, my friend.
I am now convinved that there is even more fraud and abuse in government "entitlement" programs than I had previously thought.
Is that your way of saying you would deny food stamps to a family if the head of household didn't have a clunky, messy, slow, analog, annoying driver's license or state-issued photo ID?
Friends of mine lost everything in a house fire last year. No IDs, no birth certificate, no paperwork at all left, and needed some assistance. You would deny them?
o get back to your main premise that it is just as easy to get CCP as a student ID.
That never was my premise, main or otherwise.
Heller was a narrowly tailored case meant to allow the Court to answer one question: "We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution."
The case was one step in a long struggle to define self defense as a fundamental individual right of US citizens, and has been followed by multiple cases expanding on that theme.
The legal genius behind these cases, Alan Gura, should be as well known when it is all over as was Thurgood Marshall when segregation was destroyed.
To get a student ID all I have to do is register for classes.
And you can have that issued under someone else's name instead of your own?
madisonfella said...
Friends of mine lost everything in a house fire last year. No IDs, no birth certificate, no paperwork at all left, and needed some assistance. You would deny them?
2/12/15, 2:59 PM
So because we can't create a "perfect rule" we should have none at all? Voter fraud happens, we know it. Despite what you have been told, no one has a "right to vote". Voting is a privilege and when available must be available equally. Ensuring the integrity of the vote by requiring a state issued, photo ID is not infringement and if some "special snowflake" can't plan ahead well enough to get a valid, state issued photo ID in sufficient time to vote, it must not have been important enough to them.
@Moose -- unfortunately I suspect that's a corporate decision, along the same lines as Apple blurring out images of guns in games in the App Store, or CVS deciding not to sell cigarettes.
You can't buy ammo on Amazon even though it's legal to buy ammo online in most states.
We've basically forgotten about the problems that large corporations can cause. A smart Republican party (I know, I know!!) would go on an antitrust tear, breaking up large companies in the financial, entertainment, media, and retail sectors (to start with).
What, you mean a bill-of-rights amendment is being enforced the way the other amendments are? Shocking!
MikeR babbled...
Huh - just like getting an identity card to register to vote
Gee, yeah, throwing artificial roadblocks in peoples' way to prevent them from buying a legal product is JUST LIKE requiring people to demonstrate they are not commit fraud.
Because, it's totally easy to live life in the US legally without a photo ID. In fantasy land.
madisonfella wrote: There are many examples of people being unable to obtain the special IDs needed in order to vote.
Yeah, mostly those poor undocumented citizens.
madisonfella said...
To get a student ID all I have to do is register for classes.
And you can have that issued under someone else's name instead of your own?
That wasn't the original question, but why not. What sort of proof is required to register?
"You don't just have the right to vote. Each citizen has the right to vote once."
Does not the right to vote include some prohibition that one's single vote is not diluted by multiple votes of others, or that other's votes are lawful?
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