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Leave it to Newsweek to bollix (read, shamelessly spin) its coverage of this jerk.
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Posted by: TEEBONE ®

05/09/2019, 14:08:30

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Cory Booker’s gun control plan is ambitious, but is it constitutional?

By Asher Stockler On 5/8/19 at 12:40 PM EDT
7-9 minutes

Presidential candidate Cory Booker unveiled a suite of proposals on Monday aimed at tackling the growing epidemic of gun violence. The senator from New Jersey touted his reform package as “the most sweeping gun violence prevention proposal ever advanced by a presidential candidate.”

But the proposals would incur significant opposition from Republican lawmakers and organizations like the National Rifle Association, the latter of which frequently challenges gun regulations in court. According to one gun law expert, Booker's plan is likely to have mixed success complying with courts' interpretation of the Second Amendment.

Booker’s wide-ranging plan features three main pillars: keeping guns out of the hands of criminals; restoring civil liability in lawsuits against gun manufacturers; and greater scrutiny of the National Rifle Association. The first pillar is his most sweeping proposal, containing a host of measures that would transform gun ownership in America.

One measure would establish a federal requirement that gun-owners obtain a license, similar to that used to drive a car, and give states flexibility in implementing their licensing programs. As part of the process, individuals would have to submit to a background check and pass a gun safety certification course.

While previous attempts to regulate gun usage have been repudiated by federal courts, Jake Charles, executive director of the Center for Firearms Law at Duke University, told Newsweek that the licensing proposal “would likely comport with current Second Amendment doctrine.”

“Many states have licensing or permitting requirements, and courts have generally upheld these against Second Amendment challenges,” he said, adding the caveat that “some courts have struck down licensing regimes” which place a presumption against access on prospective gun owners.

Booker also called for gun purchases to be limited to one per month per customer, which has a thornier path to legality.

Charles noted that “several states also have regulations limiting the number of handgun purchases per month,” though, a federal appeals court in Washington, D.C., “struck down the district’s one-handgun-per-month ban as violating the Second Amendment.” The court’s ruling in that case only applies to its appellate jurisdiction, leaving similar laws in California, Maryland, New Jersey and New York City on the books.

Booker, who unveiled the proposals as part of his candidacy for the Democratic presidential nomination, cited his background as Newark’s mayor as a reason for his hard-charging approach to gun violence reform.

“This is a personal fight for Cory,” the rollout of his reform package reads. “His perspective is rooted in his experience living in Newark, NJ, and working to stem the tide of violence for the past 20 years—as a tenant organizer, on the city council, as mayor, and as a senator.”

A more contentious part of his plan would make use of executive orders to accomplish at least some part of this gun reform agenda.

“Beginning on Day One in office, Cory will take executive action to build on ongoing efforts and take concrete steps forward,” the plan announces.

Republicans widely criticized President Obama for taking executive action on climate change and other initiatives when he could not get Republicans in the House or Senate to work on bipartisan reforms. President Trump has similarly been lambasted for acting alone in seeking to ban travelers from predominately Muslim countries from entering the U.S., among other divisive initiatives. Like his predecessors, a President Booker would almost certainly encounter a flurry of lawsuits should he take a parallel approach to curb gun violence with executive action.

When President Donald Trump issued a declaration of national emergency to build a wall along the U.S.-Mexico border without congressional approval in February, many Democrats saw an opening to use similar tactics in pursuit of policies they viewed as urgent, such as the gun violence epidemic.

“If the president can declare an emergency on something he has created as an emergency, an illusion that he wants to convey, just think about what a president with different values can present to the American people,” House Speaker Nancy Pelosi said at a press conference on the anniversary of the Parkland shooting. "You want to talk about a national emergency? Let’s talk about today."

“Senator Booker’s proposals would be on firmer constitutional footing with congressional action,” Charles observed. “The answer to [these conflicts] relies on hotly contested issues of executive power and the scope of the president’s power when issuing executive orders.”

For example, Charles pointed to a current federal statute that prohibits regulators from adopting a national firearm registry, but noted that, just as when the President Trump’s Department of Justice successfully moved to ban bump stocks, some regulatory reform could be achieved within the current legal framework.

Of the proposals most likely to realize Booker’s aim of reducing gun violence, Charles took note of the senator’s plan to expand the use of so-called Extreme Risk Protection Orders.

These orders, issued by a court after a petition from a concerned party, allow the police to temporarily confiscate a gun owner’s weapons in certain urgent circumstances. The orders “have shown success at decreasing suicide rates in states that have adopted them,” according to Charles, adding that this approach has seemed “palatable to both sides of such a contentious debate.”

The greatest number of gun deaths every year results from suicides, so any proposal that addresses this form of gun violence could have a disproportionate impact.

Booker is also pushing for a number of garden-variety measures that aren’t as likely to encounter resistance from Congress or the courts. These include proposals to invest in community-based violence intervention programs and mandatory reporting requirements for lost or stolen guns.

However, his calls for an investigation into the NRA’s tax-exempt status and the restoration of civil liability for gun manufacturers, who are currently immune from most civil suits, promise to generate significant pushback from congressional Republicans and gunmakers.

In response to a request for comment, NRA spokesman Lars Dalseide told Newsweek: "It's sad that politicians vying for the gun control lobby’s endorsement would rather score political points than improve public safety. If they were serious about making communities safer they would propose solutions that focus on the underlying issues and punish criminals instead of the law-abiding. This extreme gun control manifesto lacks facts, solutions, and common sense."

Sabrina Singh, a spokesperson for Booker's campaign, said that the aim of the reform package "is to make it harder for people who should not have a gun to get one."

"Cory [Booker] is ready to take the fight to the NRA - period," Singh told Newsweek. "His plan - including requiring a license to purchase a gun, universal background checks, banning assault weapons, and closing the Boyfriend Loophole - calls on the IRS to conduct an investigation into the NRA's exempt tax status. No wonder they're so concerned."

This article has been updated to include statements from both the National Rifle Association and Senator Booker's presidential campaign.

Barry Hirsh
First, the meme "epidemic of gun violence" is facially bogus. According to the FBI UCRs, violent crime with firearms has been decreasing, uninterrupted, for more than two decades. Sensationalist left-wing press does not an "epidemic" make.

Next, ERPOs as currently enacted by the 15 states that have adopted them will eventually be struck down as having insufficient due process protections.

The Heller and McDonald precedents have ruled that bearing arms is an individual, FUNDAMENTAL right and its constitutional protection has been incorporated to bind the states. That status demands full due process before being suspended or denied.

Unless you enshrine full due process guarantees in the text of the law itself, it will be unacceptable.

Due process as applied to fundamental rights means an adversarial hearing wherein the respondent can face his/her accusers, cross examine witnesses, and present witnesses and evidence on his/her behalf, and the threshhold to suspend the right must be "clear and convincing evidence", not the present "preponderance of evidence".

The problem with these laws is that they use ex parte hearings where the respondent isn't even notified that one is taking place. That is an egregious circumvention of the commands in the 4th, 5th, 6th and 14th Amendments, and when such seizure orders are executed it is usually at 5am by a dynamic entry team. The potential for catastrophe permeates the entire exercise.

You can't take someone's liberty (i.e. his natural right to bear arms) or his property (i.e. his firearms) without first having an adversarial hearing and getting a probable cause ruling based upon clear and convincing evidence.

Dwight Looi
It’s very simple. The US CONSTITUTION is a FEDERAL DOCUMENT. Therefore, gun rights should be a Federal issue and uniform across the country.

States and local municipalities should be prohibited from making gun laws, period. There should be one set of Federal Laws governing what is permissible to own, as well as how and when guns can be carried for legitimate purposes. This Federal standard cannot be deemed by the SCOTUS to significantly “infringe” upon the right of the “people” to both “own” and “bear” (carry) arms.

Anything else means that some Americans enjoy greater constitutional rights than others. You don’t have to agree with the US Constitution and you don’t have to like it. You are free to try to change it; the 2nd Amendment itself is a change to the US Constitution. But, until you succeed, it limits the laws and regulations you can make to limit gun ownership and carry rights. The USA is not a Democracy. We are a Constitutional Republic in which the US Constitution universally and evenly limits what the government can do to you irrespective of where you reside.

Barry Hirsh
Sorry, pardner, that isn't the way federalism works. The U.S. Constitution is indeed a federal document, but it is one of limitations on the federal government, not one of universal powers. The Bill of Rights legally bound only the national government, and the 10th Amendment guaranteed against federal overreach. The states' powers to adopt their own constitutions were thereby protected.


...the 14th Amendment extends the Bill of Rights to bind the states. It does this wholesale, however, the Court invented the "incorporation doctrine" wherein it only applies to whichever rights the Court says. This doctrine is bogus. The plain language of the amendment, duly passed and ratified as part of the Constitution, is a blanket mandate. Given the legislative history leading up to its adoption, there is no doubt about what it says.

That being said, the Heller and McDonald precedents have effectively written into law exactly the effect you desire - it has already been done. The problem has been that jurisdictions and courts of opposing ideology have either ignored the requirement to follow SCOTUS precedent, or they nitpick those decisions, which subsequently forces new challenges to be filed and pushed up through the system.

The way it works is that states can regulate per the status quo, up to and until the point where any challenged regulation makes its way up to the SCOTUS, whereupon the SCOTUS rules on the issue. And unless the Constitution is afterward amendmended to the contrary on any specific state power, that's where it STOPS.


Democrats wouldn't buy a clue if it was government subsidized.

Modified by TEEBONE at Thu, May 09, 2019, 14:22:41

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