License to Own Constitutional?

[IdahoSkies]

Has SCOTUS ruled on the Illinois, New York or Massachusetts requirement to have a licenses to own a firearm?

I tried to look was not able to identify if that issue had been appealed up beyond state level courts.

 

[jrmiddleton425]

Has SCOTUS ruled on the Illinois, New York or Massachusetts requirement to have a licenses to own a firearm?

I tried to look was not able to identify if that issue had been appealed up beyond state level courts.

To my knowledge, SCOTUS has not accepted any cases challenging licensing requirements. D.C. vs Heller was the last case I know of to even address the issue. Essentially, the requirement to register a handgun was presumed to be constitutional, as long as the ability to register a handgun satisfied Mr. Heller's petition for relief.

 

[ilbob]

The court actually answered a fairly narrow question, as is appropriate. I don't recall that the Heller case raised that issue.

 

[CapnMac]

It certainly looks like no one has brought a suit claming to be "damaged" by the licensing/premitting requirements.
You need a test case, or a "class" of persons damaged by the law to bring a suit forward.
In the former case, a single damaged party will need a conviction which was then appealed.
A class group can be formed after the fact, and the agency which created the ordinance enjoined. Which generally generates an appeal process.

SCOTUS does not simple trawl through laws looking for bad ones; a fruitless task given the tens, hundreds, of thousands of laws that exist. (Why is it still a federal felony to transport living plants across State lines without a permit--well, becasue nobody in St Louis, Kansas City, Texarcana or the like has been arrested for the crime and then sought an appeal.)

So, they take the cases that have been appealed through every possible step in the appellate process.

 

[AlexanderA]

A license to purchase / possess would probably pass constitutional muster (based on the dicta in the Heller case), unless the requirements for such a license were so onerous as to constitute a de facto ban. For example, if you were to introduce evidence that only a small percentage of applications were approved, and that arbitrary reasons (or no reasons) were given for denials, then that licensing scheme would probably be voided, under the rationale of Heller. That is, if the issue ever reached the Supreme Court.

 

[danez71]

A license to purchase / possess would probably pass constitutional muster (based on the dicta in the Heller case), unless the requirements for such a license were so onerous as to constitute a de facto ban. For example, if you were to introduce evidence that only a small percentage of applications were approved, and that arbitrary reasons (or no reasons) were given for denials, then that licensing scheme would probably be voided, under the rationale of Heller. That is, if the issue ever reached the Supreme Court.

I'm generalizing....

.....And that is basically what the Peruta case was about,,,,and it did reach SCOTUS,,,,, and they denied to hear it.

 

[ATLDave]

As others have said, we don't have the definitive guidance on this yet. However, I would provide this for context/level-setting.

While I don't like it, there are many constitutional rights that are subject to some kind of procedural requirement to exercise. Marriage has been recognized as a constitutional right, and one has to get a license from the state to get married. Public assemblies for purpose of free speech are constitutionally protected but often require a permitting process. You have to register in order to be able to vote.

If it gets to the point where people who are otherwise legally entitled to exercise a right cannot because the process has become so onerous or generates frivolous or discriminatory rejections, one would have a stronger claim that the process has crossed the line. But making the case that some level of form-filling rigamarole is per se unconstitutional is not an easy lift.

 

[wojownik]

I'm generalizing....

.....And that is basically what the Peruta case was about,,,,and it did reach SCOTUS,,,,, and they denied to hear it.

Not really - the Peruta case was about licensing to carry a weapon when one leaves leave home. A more fundamental issue is licensing/permitting to even own a weapon in the first place. Somewhat different animals,and one could argue that the former should be argued before the latter.

One could also argue that the courts conservatives have been waiting for the right case to clarify the legal doctrine by which any of those cases should be reviewed --> strict scrutiny. Once that doctine is in place (or frankly any single coherent doctrine - but preferably strict scrutiny), then we may see SCOTUS take on more 2A cases IMHO.

The level of scrutiny will have a profound impact on the burden of proof required to defend whether a particular licensing scheme is constitutional. And, so far, there is really no coherent and singular level of scrutiny used in examining 2A cases.

If strict scrutiny is adopted as the doctine for 2A cases, then the burden of proof as to why a "fundamental right" is being constrained shifts squarely to the gov't, In that case, a NY, IL or MA licensing law would need to defensible that there is a compelling state interest behind the policy, and the law or regulation is narrowly tailored to achieve its result.

Intermediate scrutiny dilutes things a bit - that a law/policy serve an important government objective, and an must be substantially related to achieving the objective. It is be an easier tasks defend many (even most) licensing schemes using this doctrine, if a law/policy is framed serving the important objective of public safety, and the law/policy is substantially related to that end.

Rational basis is the lowest level of scrutiny - essentially where the courts pretty much just defer to the gov't just because the gov't sez so ... even if it has not demonstrated or proven a rational basis for a law/policy.

And, indeed, we've seen courts across the US use any of these three tests (and more often than not intermediate scrutiny and rational basis - rarely has strict scrutiny been applied to a 2A challenge to date). And that doctrinal incoherence is a fundamental problem when challenging licensing schemes like NY, IL or MA. If a court uses a rational basis test, they will basically accept the government position ... because the government says so. The blanket deference to "public safety" claims. Likewise, intermediate scrutiny makes the government work a bit harder to justify its stance, but intermediate scrutiny makes it fairly easy to defend such policies simply beause a firearms regulation can be generally/substantially tied to a government objective (public safety/crime control).

Strict scrutiny, however, is not a magic formula for waving away firearms regulations. That doctine, however, is an essential element if SCOTUS is really to frame 2A as a fundamental individual right. Heller and McDonalds went a long way in framing 2A as an individual right. The question as to it being a fundamental right - akin to 1A protections - is the next major battle.