Maine federal judge grants temporary injunction on ‘waiting period’ gun purchasing law
www.jurist.org
A US federal judge in Maine granted a temporary injunction on Thursday to pause the implementation of a gun law that requires 72 hours to pass before the purchase of firearms can be completed. Judge L...
  • Rivalarrival@lemmy.todayEnglish
    21·
    7 days ago

    I can more clearly address it, sure.

    First off, my focus here is “strict scrutiny”. I provided a link above. To summarize:

    In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate that the law or regulation is necessary to achieve a “compelling state interest”. The government must also demonstrate that the law is “narrowly tailored” to achieve that compelling purpose, and that it uses the “least restrictive means” to achieve that purpose. Failure to meet this standard will result in striking the law as unconstitutional.

    Basically, if you want to write a law that affects a constitutional right, it must pass the “strict scrutiny” test.

    The cooling off period does not violate the 5th amendment. I mentioned the 5th amendment as a general, non-controversial example of constitutional rights, in order to demonstrate how “strict scrutiny” would apply.

    The 5th amendment guarantees a right to “due process”. If you are arrested on suspicion of having committed a criminal act, the police can’t just hold you indefinitely. As soon as feasible, the police have to release you with a summons. If they want to hold you in custody, they have to deliver you to court quickly, generally not more than 48 hours after arrest. That initial hearing is called “Arraignment”.

    A law that allows police to hold you for any amount of time without charge (8 hours, 48 hours, 2 weeks, whatever) would affect your 5th amendment right to due process. That doesn’t necessarily mean it violates the right; it simply affects it. If the state wants to keep such a law, they will have to show that it meets the “strict scrutiny” standard. If they can meet the “strict scrutiny” standard, that law can be enacted. Here, the courts would likely determine that the 2-week delay is not the “least restrictive means” of achieving whatever “compelling interest” the state has in delaying

    The 2nd amendment guarantees constitutional rights that are impacted by a “cooling off” period: the right to keep and bear arms. As such, the “strict scrutiny” standard applies. That doesn’t mean that cooling off periods violate the constitutional right; it just means that the necessity of such a law will be judged by “strict scrutiny”.

    Even conceding the “compelling interest” and “least restrictive means” components of the test, waiting period laws are not “narrowly tailored” when they are imposed on current gun owners. Without meeting “strict scrutiny”, they should be overturned.

    • 0^2@lemmy.dbzer0.com
      22·
      7 days ago

      You make some valid points and I applaud you and again thank you for being so thorough. However, quote the full 2nd amendment, and you will see that a waiting period is encouraged by it.

      • Rivalarrival@lemmy.todayEnglish
        11·
        6 days ago

        Before we get to the “well regulated” clause you’re referring to, we need to understand “militia”.

        First, I’ll direct your attention to Article I, Section 8, parts 12 and 13. These give Congress power to create armies and a navy.

        Next we’ll go to part 15: Congress is not given power to create the militia. Congress’s power is to call forth the militia. The militia exists without having been created by Congress.

        The militia consists of everyone that Congress can call forth. Who is that? Who can they call forth?

        We know from 10 USC 246 that they have already provided for calling forth able bodied male citizens (and those intending to become citizens) aged 17 to 45, as well as members of the National Guard, regardless of age, sex, physical abilities, or citizenship status. They limited themselves to men, aged 17 to 45; they are free to revise that criteria any time they want. They are free to change the age range to 16 to 60. They are free to change “able bodied” to “sound mind”. They are free to include women. They are free to include non-citizens and foreign volunteers. Even children have been allowed to come forth when Congress has called in the past.

        Everyone that Congress can call forth is the militia. The militia is the people. The same people to whom the right is guaranteed in the 2nd amendment.

        “Well regulated” refers to Part 16, in which Congress is granted the authority to provide “discipline” (training standards), and the state is granted the authority to conduct that training. The second amendment explicitly limits Part 16 powers as they pertain to the right to keep and bear arms. Congress has the power to arm the people; they do not have the power to disarm the people.