One-Gun-A-Month & The Constitution

[BillCA]

Okay, we've celebrated that a second district appeals court has recognized the 2nd Amendment as an individual right. It is still an uphill battle yet there are some promising cracks in the dam.

Let's chip away a little more.

Several states have a law that limits you to buying one-gun-a-month. In California it excludes private party (and consignment) sales... at least for now. I'm uncertain of the exact scope or limits of the other states however.

Regardless of loopholes, I think this can be shown to be an unconstitutional restriction on a right. Consider that courts have already ruled, using other rights, that

• a right may not be licensed, taxed or a fee required to exercise the right.
• government may not exercise prior restraint of a right (e.g. requiring a permit to voice an opinion or require gov't approval for a speech.)
• rights are not absolute or without limits but limits require strict scrutiny for a compelling public interest.
• delay of (the exercise of) a right is a right denied.
• rights apply to all citizens equally, with the exception of those rights limited or denied to individuals through due process (e.g. felons and voting).

Thus, schemes to limit the exercise of a right to once per month form the basis of prior restraint. Imagine limiting freedom of the press reporters to one article per week (in some cases it's tempting! ) or limiting the right to self-incrimination to once per year.

Someone will point out that OGAM laws serve a compelling public interest by limiting the number of guns that can be purchased at one time. But is this sufficient and compelling when one considers the right to arms as an individual right?

One can argue that reporters and media commentators can exercise their rights multiple times per hour on different subjects and endanger more people than a "gunrunner" could. An example is the Roaoke Times reporter who published a database of over 130,000 CCW permit holders, many hiding from violent predators. Yet we don't hear clamor for laws restricting reporters to one article per month.

 

[JuanCarlos]

rights are not absolute or without limits but limits require strict scrutiny for a compelling public interest.

That's the kicker right there. The state can argue a compelling public interest in restricting the sale of guns so as to make it more difficult for criminals to get ahold of them. Yes, the impact to criminals is small...but most would argue that the impact to private citizens is similarly small.

Considering you can theoretically buy 12 guns per year under this law (more than a vast majority of people will ever own) it's hard to argue it's an undue burden. The Constitution guarantees the right to keep and bear, not the right to collect...with only one gun you are now armed to defend yourself...with 12 you are now armed to defend yourself in nearly any imaginable situation (assuming you buy 12 guns of different types).

Now, a better way to do it (if I favored such policies) would be to have an "initial" limit per person (say, four or five guns) which could be purchased just as quickly a you'd like...then after that have some sort of per-month limit. This way somebody walking in on their first visit doesn't have to decide whether they want a compact handgun to defend themselves from two-legged predators or a shotgun/rifle for the four-legged variety. EDIT: Of course, this would require some sort of searchable registration database...which I assume none of us here want either.

However, I don't favor such policies so I still say get rid of it. I'm just not sure it can be done on Constitutional grounds. I'd say things like waiting periods have much better Constitutional arguments against them. There are still states that do waiting periods, aren't there?

EDIT: Oh shoot, you actually mentioned my argument. So if you skip to the bottom I'll say that it can be argued that OGAM laws do not significantly impact the individual right to keep and bear arms. See above for reasoning.

 

[Big Don]

Bill, you and I both could have "standing" with OGAM but who's willing to fund the fight? We need someone with the time/money/ambition to take this on. Would that I had the first two! The policritters are going to do what they want until someone reigns them in and that will probably have to be via our courts and we know what that will encompass here in Kalifornia!
Let's see if we can get the ball rolling, perhaps with the NRA and CRPA.
Don

 

[rem33]

Juan you make a pretty good argument, and I was picky what I chose from your post but...

Considering you can theoretically buy 12 guns per year under this law (more than a vast majority of people will ever own

BillCa is correct in my view in that one chip at a time even the largest tree will fall. That, in the last 40 or so years, is exactly what is happening. So if for no other reason than that gun laws need to be stopped.

Let's chip away a little more.

It will never be enough till firearms are gone completely from the publics hands in some eyes.

 

[JuanCarlos]

It will never be enough till firearms are gone completely from the publics hands in some eyes.

Some eyes, sure. I think you and most folks here vastly overestimate just how many of those eyes there are. I don't think they ever have or ever will hold a majority in Congress, and they certainly aren't a majority of the American people. Heck, I don't even think people who want handguns gone comprise a majority in either case...maybe in a few localities, but that's about it.

Now, if you want to talk about "reasonable" or "common sense" gun control (which too often is neither) then yeah, some majorities can be found there. But they whole "they're going to take all our guns away" argument presents a pretty serious slippery slope, and in my opinion (and the opinions of most moderates I've ever talked to) just takes away credibility from those arguing for unrestricted firearms rights.

 

[JuanCarlos]

Also, if you want to talk about really scary then logically in my first post here I made an argument that a (relatively small) limit on total number of guns you are allowed to own makes more sense than a per-month limit. Think about that one for a minute. *shivers*

Basically, I said it before and I think it bears repeating: the Constitution establishes your individual right to keep and bear arms for both your personal defense and the common defense. It does not establish your right to keep and bear arms for the purpose of collecting. And seeing as we're talking about deadly weapons and not stamps or baseball cards, it's probably not hard to show a compelling interest in restricting you from doing so.

Or, put another way, you may actually find more people who think it'd be reasonable to allow folks to own an AR-15 or AK-47 than people who think it'd be reasonable to allow folks to own like 300 handguns/shotguns.

I just don't think attacking OGAM laws on Constitutional grounds would be as effective as you might hope.

 

[rem33]

Again we are going to have to agree to disagree I can tell.
From what I have seen in my short life is you can lead the people just about anyplace you desire. I despise the word sheeple but in manys way it is so true.

History tell me that the folks will just go right along with what is popular or what their told such a Germany 75 or so years ago.
Even now in this country if you have a silly gun drive hundreds of guns are turned in not taken given.

Were never gonna agree on this thats for sure.

 

[TheFacts]

Consider that courts have already ruled, using other rights, that

a right may not be licensed, taxed or a fee required to exercise the right.
government may not exercise prior restraint of a right (e.g. requiring a permit to voice an opinion or require gov't approval for a speech.)
rights are not absolute or without limits but limits require strict scrutiny for a compelling public interest.
delay of (the exercise of) a right is a right denied.
rights apply to all citizens equally, with the exception of those rights limited or denied to individuals through due process (e.g. felons and voting).

Your arguements are sound but can very well be scrutinized when submitted under a 2nd amendment cause. Instead, why not focus on the much ignored
9th amendment. Since intrinsic interpretation of the 2nd amendment (in modern times) has become a topic of such misunderstanding and rhetoric, your contentions may develop more substance under 9th amendment doctrines.



Curiosity yields evolution...satiety yields extinction.

 

[applesanity]

While I may not know the best approach to deal with this stupid law, it still needs to be dealt with. Because every seemingly insignificant law always leads to some bigger, more restrictive law. Consider this potential loophole.

You buy a gun, your father buys a gun, your wife buys a gun, your sister buys a gun, your best friend buys you a gun. It just so happens that tomorrow is some holiday or birthday or whatever, and all these people give you these guns as presents. Now you have 5 guns.

I can imagine the next law to follow: "limit one gun per household per month." then it'll become "limit one gun per social circle per month" or whatever.

 

[BillCA]

Juan, et al.

First, let's define strict scrutiny;
(thanks to GoSlash27 in this TFL thread)

First, it must be justified by a compelling governmental interest. That is, actually crucial, not just preferred.

Second, it must be narrowly tailored to achieve that goal or interest. That is, specifically worded to achieve the interest, no more and no less.

Third, it must be the least restrictive means for achieving that interest. That is, there is no less intrusive way to accomplish the goal.

Let's couple this with a few other tidbits that I threw out already...
1) A right delayed is a right denied.
2) A right may not be taxed or a fee imposed for the exercise thereof.

So now the question is how can we re-define the world so that we can prevent Danny Dirtbag from easily running guns while allowing a law-abiding citizen the ability to purchase several firearms (i.e. one for each family member).

Let's combine your idea of "multiple sale limit" with a time period and maybe a special form. Suppose we set a limit of n-guns that can be purchased at once (say 4 for our purposes here). If a buyer wants to purchase up to 4 guns he can do so, going through the existing NICS system, get approved and then finish his transaction. However, suppose you find that you want to purchase a 5th gun. Fine and dandy. But you are limited to how many you can take home today, that 5th gun has to be picked up tomorrow. And you get to decide which one will be #5.

What this does, is allow multiple purchases legally while denying large bulk purchases by Danny Dirtbag. Currently ATF requires a special form be filled out for multiple gun purchases and that could continue. If Danny Dirtbag wants to buy 20 Hi-Points he has to return to the store 5 times to complete the deal. Each time he risks having the cops show up to query him on his gun purchases. More likely he'll try to hit 5 different stores on the same day, making it more inconvenient for the criminal than the citizen.

I figure that most people might want to buy up to 3 guns -- like just after getting their tax refund -- but four guns might be reasonable for those exceptional opportunities.

This is certainly less intrusive to the average citizen and puts the burden on only those who want to buy in larger quantities. A 1-day delay is as minimum as we can go effectively.

The NICS system could identify ("flag") people who are buying multiple guns from multiple stores on the same day for closer scrutiny, without keeping a database of who owns what guns.

 

[BillCA]

JuanCarlos,

Your comments on the difference between being armed and collecting are duly noted. But I disagree.

The phrase to keep and bear arms specifies you have a right to keep them and the carry (bear) them properly. But using your logic, it doesn't guarantee the right to purchase arms specifically, so why allow any sales at all?

As you've probably surmised, it implies that arms can be acquired (purchased) for the purpose of keeping and bearing. But rights can be exercised at will and are not generally limited to government quotas. Indeed, the government could say "You have your 1 gun, you are armed, no purchases for you" despite the fact that your sole gun is a single-shot H&R 410 shotgun. Except that nowhere in the constitution or the Bill of Rights is Congress given the power to limit how often a right may be exercised (with the exception of specific time tables for elections).

Try reading any of the rights enumerated in the BOR with the idea that citizens could only invoke said right once per week/month/year and you see how absurd the notion is.

While limiting the number of firearms a person can purchase may be a compelling public interest, it's my contention that the existing OGAM laws are not the least invasive method for controlling the problem. This is especially true when the time period is excessive (a month or a week) and the need for multiple firearms is urgent (e.g. riots, rebellion, impending natural disasters, civil unrest, etc).

 

[rem33]

OK, another thought... Ah-oh
Who's going to obey such limit laws?
Only the law abiding, guys like you and I that do our best to be legal.
So called bad guys aren't going to, so what good is such a law besides another chip in the tree of gun freedom?

Can anyone answer that?

NY yelling that guns are brought from Va. and is that legal now?
NO! so again what's it going to change?` nuttin.

Wake up people, more gun laws will do nothing to prevent more crime.

Right to keep and bare arms shall not.. where was added the amount or type? Lets not read what's not there.

 

[BillCA]

Rem33,

The point of the exercise, really, is to show that current 1-gun/month laws are not the least invasive way of handling the "gunrunner" concern. This means, if challenged as an restriction on a right, the court could see that it fails "strict scrutiny".

The purpose of the law is to prevent someone from in, say Virginia or another state, from purchasing 10, 20 or more guns, then driving up to NYC to sell them. But street thugs will get mutiple guns from street sources and there's no way to control how many they get.

 

[Hugh Damright]

I am a Virginian and we have a one-gun-a -month law. I don't like it, but I don't want the federal government to come to my rescue. I think it is an intrastate affair.

 

[JuanCarlos]

OK, another thought... Ah-oh
Who's going to obey such limit laws?
Only the law abiding, guys like you and I that do our best to be legal.
So called bad guys aren't going to, so what good is such a law besides another chip in the tree of gun freedom?

Can anyone answer that?

It limits supply. As BillCA pointed out, most illegally purchased firearms were at one point legally purchased. There are, believe it or not, people who will go and buy 20 guns then resell those same 20 guns to 20 different people who are not legally allowed to own them. In theory by restricting the legal sales of guns you can make this practice more difficult (same goes for that law up in Hartford regarding punishment for failing to report stolen guns)...thus ending up with less guns in the hands of criminals and making it more expensive for them to get them. Which is a good thing.

In practice it's not nearly as effective as the lawmakers who propose these bills claim it will be. Also, as BillCA pointed out, it may not be the least intrusive/restrictive method to achieve the same effect.

I am a Virginian and we have a one-gun-a -month law. I don't like it, but I don't want the federal government to come to my rescue. I think it is an intrastate affair.

Well at that point California's gun laws are an intrastate affair too....ugh. If we're arguing Constitutionality, it's not an intrastate affair...all states have to follow the US Constitution. And I'm not one to complain when the federal government comes along and "gives" me more rights (by making my state honor them). It's only when they go the other way that I get a bit annoyed...though unfortunately that's more common.

 

[rem33]

In theory,,,,
In practice,,

Just exactly did that answer state?
I think you made my point for me there.
It won't do a thing to illegal activity. the so called 20 weren't legal to begin with.
But will restrict the legal owner thereby another chip in the tree of firearm freedom.
Thank you

I didn't realize Va. had done the once a month law. I suppose there are less guns on the streets of NY and that Gun related crime has fallen dramatically because of it. Now with the courts recent decision DC will become unsafe.

 

[JuanCarlos]

Just exactly did that answer state?
I think you made my point for me there.

That's probably because I largely agree with you.

It won't do a thing to illegal activity. the so called 20 weren't legal to begin with.

Ah, then you missed part of my point. The "so called 20" in my example were legal to begin with. That's the problem. Somebody can go legally buy 20 guns and then easily turn around and illegally sell them. Allow that person to buy only one gun, and only one can be sold. Restrict supply, raise prices, make guns harder for criminals to find.

Of course, such a plan can only hope to be even marginally effective if everywhere within a day or two's driving distance enacts the same laws. Even then I'm not sure how effective it would be, but I'm not willing to state that it wouldn't help. I'm just not convinced that it would.

And, as you pointed out, if the impact on law-abiding citizens will be greater than the impact on criminals (which in this case I suspect it would be) then I don't think it should be implemented.

But street thugs will get mutiple guns from street sources and there's no way to control how many they get.

Except that many "street sources" got their weaponry at some point up the chain from legitimate sources. By pinching those legitimate channels, you can theoretically reduce supply on the street. Raising prices, making guns more difficult for a criminal to find. Make guns expensive enough, and some criminals may not even bother.

The key, as you pointed out, is to do so with maximum effect on criminals and minimum effect on the rest of us. Which I don't think OGAM laws accomplish. I'm just not entirely convinced there's a Constitutional argument to be had on the issue...though you've definitely given me some points to think about.

 

[Hugh Damright]

If we're arguing Constitutionality, it's not an intrastate affair...all states have to follow the US Constitution.

I am arguing constitutionality. The US Constitution does not say "No State shall pass gun laws", but rather it reserves gun control powers to the States as intrastate affairs.

Virginians have our own Constitution. But a purchase limit of one handgun per month does not disarm the people, it does not threaten free government, and so it does not violate our Virginia Bill of Rights.

 

[BlueTrain]

I really think you ought to rethink some of the names you all apply to people. If there is one animal that likes to butt heads, it is sheep.

 

[Fremmer]

The Least restrictive? Can't they come up with something that's not so....restrictive?!?