Absolutely not.
The exceptions can (and will) swallow the rule, IF the "rational basis" test is adopted (i.e. reasonable restrictions). Legislatures can and will, without a doubt, restrict firearms to the point of a total ban (except for that one single shot .22 per family, stored in the safe at the gun range, accessible once per month per approved, licensed family member for target shooting). And, if you study the Supreme Court tests for striking laws - ok, lookit - it's real simple - quick primer in SCOTUS law - any law challenged on const. grounds is looked at through one of three tests:
1. "Rational Basis": The overwhelming, vast majority of laws are looked at with this test - the SCOTUS asks the question "Did the legislature have a rational basis for passing the law?" If they did, then the law stands. As a practical matter, laws judged uder the rational basis test are always - got that? - *ALWAYS* upheld, even if there's not one scintilla of evidence that the legislature properly looked at the social science. If "reasonable restrictions" can be put on the RKBA, then this implies a rational basis test, in which case anything goes, and you know what that means with Chumpie Chuckie, et al in the Congress. The SCOTUS will never strike a law examined under rational basis (or at least they haven't yet, save possibly ONCE in history - extraordinarly rare, in any event - just wouldn't happen with a gun "control" law).
2. "Intermediate Scrutiny": Laws that discriminate against semi-protected classes will be looked at with some scrutiny over and above the simple question of "was there any rational basis for the law?". The law will be struck down as unconst., however, only if there is not deemed to be a demonstrable nexus between the law and it's contribution in accomplishing an IMPORTANT governmental interest (which you can then argue till you're blue about what's important and what's not, and to what extent). Laws that discriminate based on gender (against women, or men), and laws that discriminate against the mentally retarded have been struck down at times because the test applied was this intermediate level of scrutiny, and the test was not passed.
3. "Strict Scrutiny": This is the hardest test to pass, and similarly to the rational basis, it means as a practical matter a foregone outcome in the vast majority of cases (that being that the law IS stricken down as unconst.). Laws that discriminate against protected minorities and/or which violate FUNDAMENTAL rights get strict scrutiny applied. Examples are laws that discriminate on the basis of race or national origin, or laws that violate freedom of speech, press, the right to vote, etc.
Now, the test chosen by the SCOTUS and the lower courts is FOR ALL THE MARBLES folks - the test determined to apply is just almost the only important thing (once the individual right is established, as it most likely will be). But if the courts recognize an individual right, yet still choose to somehow apply a rational basis test, then it's an utterly meaningless right, since courts always uphold rational basis tested laws. If the SCOTUS ultimately does this, then they'll be going against every ingrained precedent in SCOTUS history, because they know, as does everyone familiar with the law, that saying there's a right is absolutely bare lip service if you're going to apply the rational basis test anyway. Now, the RKBA is CLEARLY a fundamental right, if you view the history. And therefore, strict scrutiny is CLEARLY the only test that applies, and therefore most any and all law restricting the rights to keep and bear arms *should* be stricken. To apply rational basis or even intermediate scrutiny, as apparently the 5th Circuit did in Emerson, is pure hogwash.
If rational basis is ultimately chosen by the SCOTUS (or, of course, if NO individual right is found), then it's time to go to war, folks - because it will be all downhill from there. The correct test is, of course, strict scrutiny. Now, the only thing slightly interesting from a lawyer's point of view, although frustrating and scary as a gun owner, is whether or not the SCOTUS might actually adopt a form of the very-seldom-used INTERMEDIATE scrutiny for gun rights. Then at least there would be SOME real protection, but since there's such a real scarcity of caselaw on intermediate scrutiny rights, that it's hard to say how much real protection in the long run RKBA might have under intermediate scrutiny. This would be wrong, because it would be saying, in essence, that the RKBA is a lesser right than that of the right to speech or to vote, but on a par with the right to not be discriminated against on the basis of your gender. Some laws would probably fail, but I'd imagine most (60-70% + ) would be upheld, notably the entire federal licensing scheme of 34, I'd imagine, as well as all or most of 68. But at least under intermediate scrutiny, the court will LISTEN TO and take into account the social science data (for example, in the case of the RKBA, the court would allow and entertain data at the appellate level, that assault weapons are used in less than 1% of crimes) - so at least we could get a foot in the door, and argue and appeal cases all the time with intermediate scrutiny. If rational basis is chosen (reasonable restrictions), then it's time to batton down the hatches and get ready for a rough bloody ride, IMO.
And BTW, yes, of course there is a real possibility that the SCOTUS will look at the RKBA and any given law and say "OK, strict scrutiny applies, BUT this law doesn't 'infringe', it merely does 'X' " (registration, puts a tax on, etc.), and as pointed out, they may be right about that! In truth, registration probably does NOT, unfortunately, infringe the right (in theory and therefore in the eyes of the SCOTUS). However, HOWEVER, since you know and I know, as does everyone who's ever studied history, that registration will probably eventually lead to confiscation, as a practical matter, recognized right or not, I for one, for my own selfish interests will not obey a registration law, even if I agree that it IS constitutional.
OTOH, laws that ban certain types of firearms, such as the 94 ban, are so clearly an unconst. violation of the 2A, that's there's no possible way the SCOTUS could find strict scrutiny, yet still find that the law is somehow OK (without the painful, unprecedented twists and turns, and production of ideas from the justices' nether-regions, as found in the Griswold and Roe cases - which mind you is indeed possible of course, but not too likely unless a few more Ginsburg/Breyers replace OConnor and Rehnquist - then all bets are off). So any finding by the court of either of the following two things should make you decide that being a non-gun-registering criminal is the probably the safer thing to be, for your and your family's safety, in the long run: (a) rational basis test is the proper test, or (b) strict scrutiny is the test, but the 94 ban, or its progeny,if any, is still somehow upheld.
Another important thing to note about the so-called "intermediate scrutiny" - since the SCOTUS doesn't come right out and say "this is an intermediate scrutiny test situation", the lower courts won't ever KNOW that a right is to be viewed with an intermediate level of scrutiny, unless and until the SCOTUS actually strikes some law, if precedent is any indication. You see, since the SCOTUS opinions hem and haw around so much (of necessity to get other judtices to sign off with the majority), they wouldn't say "this is an intermediate scrutiny case" in all likelihood. Rather, they would go through many pages of convoluted reasoning about reasonable restrictions, but then ultimately either UPHOLD or STRIKE the law in question. Well, since their reasoning is typically so convoluted, the lower courts take 90% of their instruction from the OUTCOME of the SCOTUS case, not close attention the reasoning/dicta. Therefore, if a gun law is UHPELD (i.e. not unconst.), AND some lip service is given to the dreaded word "reasonable", then you can almost bet that lower courts will subsequently decide that "looks like the SCOTUS went with rational basis", which is bad, bad news, because then, even if some of the justices meant that they thought an intermediate scrutiny test was appropriate, but never came out and said it in the majority or a concurring opinion, then all laws will be upheld in the lower courts (for decades? centuries?) once again until they decide the grant cert again the next time all the stars line up, and then finally inform the world that "ya know, even though we struck that law before, we didn't really mean rational basis, we meant intermediate scrutiny, and this law here, banning all handguns, doesn't look like it can stand, so we're gonna strike it". Then and only then - when a law is actually struck - do you typically find out that something more than rational basis might apply -which could be a few decades or more off. Hell, just look at US v. Miller - the court in that case clearly recognized an individual right as applying to any firearm which is useful to a military or paramilitary group, but since the bonehead didn't show up for oral arguments, he couldn't get a remand, and therefore his conviction has been upheld, and the opinion of Miller has slowly morphed over the years due to wrong interpretation upon wrong interpretation, to the point that at least 2 federal circuit courts have actually declared that there is no individual right! So don't hold your breath on a scenario where say, the Silveria court says "hey, this Cali law is kinda restrictive, true, but we're gonna uphold it because we're gonna apply intermediate scrutiny and the law is clearly tied to an important governmental interest, but don't try anything further than this, you gun-restricting states", followed by many lower court decisions saying "well you heard the SCOTUS; they drew a line in the sand", and have a bunch of laws passing the line subsequently get stricken - it ain't gonna happen til they actually grant cert and actually find that a law has already crossed the line - the SCOTUS can always be counted on to NEVER decide one iota more than it actually has to in order to dispose of the case at hand (especially if they can chunk it on standing grounds). Now, suppose a gun case like Silvera makes it up, and suppose the law is upheld, without ever saying explicitly in the majority opinion which test is used, but at the same time, some justices in a dissenting opinion or concurring opinion talk about how they believe strict or intermediate scrutiny is proper. This is better than nothing for future attempts at getting cert granted etc., but it's NOT law - NOT precedent if it's not in the majority opinion, so likely the lower courts would look at it in simple terms, espec with all the Clinton appointees - "hey, that law in Silvera was upheld - looks like rational basis to us". :banghead: So, bottom line, we've got to, got to, GOT TO, win one! That's why I tend to agree with those that say that we need to select our first big test case so utterly carefully, and boneheads ought not appeal marginal cases like Silvera. No, we can't wait forever, but we need a WIN under our belt, folks. In truth, I'm a cynic, and I actually believe the the SCOTUS wants to grant cert in Silvera so they can uphold the law, whereas they knew there was no rational way for them to uphold the Lautenberg law in Emerson without looking really really stupid by parting with established precedent, so they didn't want to grant cert in Emerson. After all, Emerson was the most beautiful case you could imagine, IMO, from a legal standpoint - his gun could be easily shown to be useful to a military group, per Miller precedent, since it was identical to an M9, and it was federal law, so there was no additional necessity of jumping through an incorporation doctrine hoop to find unconstitutionality. Silvera is a long shot, IMO.
I'm a cynic because one supposed "conservative"; supposed friend of the RKBA, Scalia, has actually been quoted as saying something like "in truth, few people will care if the 2nd amendment fades into oblivion, but...." (very rough paraphrase there). [What the HELL is he thinking? What kind of sheltered, blissninny life must he have led to think this way? Grrr.] With "friends" like this, you can imagine how Kennedy, Breyer, Stephens, Ginsburg feel about the RKBA. Not sure about O'Connor and Renhquist. Thomas usually does whatever Scalia does - he's usually a yes-man, for better or worse, and you see how Scalia feels about the 2A.
So it's not a good situation unless shrub can appoint some good peeps to the court. And since O'Connor is going to retire, and she has actually seemed to always at least try follow precedent, and since shrub doesn't seem to truly care about RKBA, I'd be willing to bet that any shrub replacement to either O'Connor or Rehnquist are going to be worse on RKBA than O'Connor and Rehnquist themselves!! Egad, man! So, really, our only hope is that Silvera or some other case gets a positive outcome BEFORE these two retire, OR that somehow shrub is able to squeak an RKBA supporter (or closet RKBA supporter) past the evenly-partisan-divided Senate before his term(s) is(are) out. Failing one of these two things, I am very afraid for the future of the USA. (unless something really weird happens like Breyer or Ginsberg retiring early or dying young for some reason).
Keeder, as to the extent of the right (assuming all goes well on the individual right, incorporation, and strict scrutiny fronts), then I would imagine that the SCOTUS, right or wrong, for better or worse, would find a limit on the right, based on some incarnation of a definition of a "small arms", as implied by the word "arms" in the 2A (but maybe not), whatever THAT turns out to be - gets into very gray area - 20mm? 50 cal limit? Up to Cannons of any size with non-explosive rounds? Includes explosive rounds, too? What? In any event, it woud take buku Scotus cases to actually figure it out, since they'll never decide anything more than exactly what is right in front of them (the arm in question in the case, be it Silvera or whomever). If they court by some miracle finds arms to include pretty much any arm up to tanks and jetfighters, then they would still probably uphold very strict licensing schemes as not being "infringing" all the way down to full-auto small arms. Althought *I* personally don't agree, I think that a realistic outcome is that the federal licensing scheme that exists today on small arms of the full-auto variety (34 act) would be found to be not violative. I don't agree, because it seems to me that when the licensing/import scheme is so restrictive as to make the cost astronomical, it's a de facto ban on a fundamental right, which should be stricken just as poll taxes were stricken in the 50s/60s - the taxes put monetary costs on a fundamental right, which discrimated against the poor, who were disproportionately black, and were therefore stricken (and course poll taxes were in fact designed to keep black people from voting in large numbers). Seems to me that if a poll tax of a relatively small amount violatives the fundamental right to vote, then a taxing an licensing scheme that makes a full-auto, clearly protected weapon, cost 10 times as much as the exact same gun to LEOs, then it's clearly violative of my fundamental RKBA. That's me - I just don't think the SCOTUS would agree, unfortunately. I do think there's a possibility that they will recognize full auto arms as protected in theory, and certainly "assualt weapons" banned in the 94 ban as being protected. I would think that arms means small arms, up to say 50 cal guns, give or take, but it's certainly possible that the FF meant all military arms - after all, as pointed out, people back then owned cannons with no restrictions (but I point out in response that, this DOESN'T necessarily mean that the 2A protected them, then or now, it only means that there were no laws against them). The key of course, is what the FFs meant by "arms". I think that, more likely than not, they meant "small arms" which in turn can be defined in a number of ways, but one workable starting point might be any arm which can be carried and deployed by an individual soldier, as opposed to a crew. Since Jesse the Governor can hump a GE mini-gun, I guess it would include that - 50 cal shoulder rifles as well and SAWS, but perhaps not tripod mounted Ma Dueces or 20mms....It gets problematic, however, because an F16 only needs one person to deploy/use it.
- As opposed to an M1, which needs a crew of four. In any event, arms includes more than firearms - it includes edged and contact weapons of course. Seems to me though, that, among arms which ARE firearms, I coulnd't disagree with a SCOTUS definition that limited protected "small arms" to those which use a kinetic round (as opposed to exploding), and which use expanding gases to propel the kinetic round (as opposed to rocket propulsion like missiles bazookas, rocket powered mortars, etc.). This seems reasonable to me, as what the FFs might have meant when they said "arms" - what the soldier of the day could have used, and by analogy, what an average grunt humps today. Certainly they envisioned kinetic rounds powered by expanding gases (muskets obviously fit this definition). Well, M249s are the same thing under this broad definition. Most mortars, though "carryable" and deployable by one person, and though they use expanding gases to propel the round, they alsouse an exploding round, so they may or may not be protected. Did the FFs envision exploding rounds? No probably not. But, does that NECESSARILY mean that they meant to limit "arms" to only those arms which they could envision? Not not necessarily! Therefore mortars aren't necessarily out - it's a fuzzy area. But, if *I* were in front of the SCOTUS and a blissninny like Ginsburg scowled at me and said "where do you draw the line, counselor?", I'd would have to (for expediency's sake, in the hope of getting any right at all) say "your honor, arms in the 2A means small arms, which is limited to any gun capable of being carried and used by a single soldier or rank-and-file militiaman, up to and including full-auto, which fires a round designed to do damage based on kinetic energy only, and propelled by expanding gases down a barrel/bore". I would do this because even though that question would probably have nothing to do with the case at bar (Emerson's M92 or Silvera's [AR15?]), so it would be dicta if anything, assuming it even made it to the opinion, and because saying "your honor, it's not complicated - gimme my M1 Abrams beeyatch" is gonna cause them to wet their pants, throw a conniption in the majority opinion, and uphold the gun law at bar due to fear of opening the proverbial pandora's box. One could then in LATER cases try to expand, expand.... Remember, most people whose lives lead them to the SCOTUS have probably led pretty sheltered lives, and therefore probably don't realize the all-important utility in weapons' ability to protect the republic. And just because they read precedent in the form of opinions doesn't mean they necessarily study HISTORY and what you can learn from it. We can only hope that they have clerks who have studied history and/or understand the value in guns, or that that actually read and understand the briefs in chief and appellate briefs submitted to them (don't hold your breath)
Wow - working on a record length post here.
