Constitutional law or civil rights attorney?

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larrybrown
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Joined: Wed Feb 27, 2008 7:32 am

Constitutional law or civil rights attorney?

Post by larrybrown »

I am looking for an attorney with constitutional law and civil rights experience who would like to join my current attorney and me in our fight to force Massachusetts to follow the Second Amendment of the Constitution.

A brief brief concerning the constitutionality of Massachusetts firearm licensing laws after District of Columbia v. Heller.

In Massachusetts you cannot possess a handgun, even in the home, without a license to carry firearms, a “may issue” license.

An applicant for a license to carry firearms must first be qualified by statute (categorical regulation). No problem here. However, in Massachusetts there then follows a second step. Each individual applicant must be a “suitable person” according to the beliefs and prejudices of his or her police chief. This means a possible 351 different licensing requirements. It’s actually worse then this because (as in this specific case) each town’s requirements can change with a change in police chief. This is the same set of circumstances found in District of Columbia v. Heller “no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods”. This second step review process is clearly unconstitutional.
In District of Columbia v. Heller, 554 U.S. 570 (2008) the Supreme Court of the United States held that the Second Amendment to the United States Constitution protects an individual's right to possess a firearm for traditionally lawful purposes in federal enclaves, such as self-defense within the home. The decision did not address the question of whether the Second Amendment extends beyond federal enclaves to the states, which was addressed later by McDonald v. Chicago 561 U.S. 3025, 130 S.Ct. 3020 (2010).
In McDonald v. Chicago the Supreme Court of the United States determined whether the Second Amendment applies to the individual states. The Court held that the right of an individual to "keep and bear arms" protected by the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states.
Heller is all about handguns. Justice Scalia states in his decision: “The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.

In Massachusetts there is a firearms license that is specific for rifles and shotguns. This license is called a firearms identification card. Although this is a “shall issue” (categorical regulation) license, it in no way compensates a citizen of Massachusetts for the inability to obtain a license to carry firearms (handguns).

Justice Scalia states in his decision: It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future
judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes)
even future judges think that scope too broad .

Justice Scalia’s decision only allows for categorical regulation of firearms possession: “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill”.

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”

Since the individual right to keep and bear arms “for traditionally lawful purposes, such as self-defense within the home” is now clearly constitutionally protected, any police chief denying a license to carry firearms must do so based only upon the fact the the applicant has a prior felony conviction or is mentally ill (catagorical regulation).

So we have several violations of constitutional rights. The fact that each individual applicant must be a “suitable person” according to the beliefs and prejudices of his or her police chief violates the applicant’s Second Amendment rights by ignoring the fact that treating each individual applicant on a “case-by-case basis” is prohibited, by ignoring the fact that the only lawful reasons for denial are a prior felony conviction or mental illness (categorical regulation),
and offen “amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society”.

Additionally, because Massachusetts is depriving its residents of their constitutional rights under the Second Amendment, Massachusetts is also violating the Fourteenth Amendment: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Finally, Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes made pursuant to the U.S. Constitution, shall be "the supreme law of the land." The text decrees these to be the highest form of law in the U.S. legal system, and mandates that all state judges must follow federal law when a conflict arises between federal law and either the state constitution or state law of any state.
As the Supreme Court stated in Altria Group v. Good, 555 U.S. 70 (2008), a federal law that conflicts with a state law will trump, or "preempt", that state law: Consistent with that command, we have long recognized that state laws that conflict with federal law are “without effect.” Maryland v. Louisiana, 451 U. S. 725, 746 (1981)

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