A nice analysis of the forthcoming case to be heard March 2 can be found here:
SCOTUSblog Second Amendment drama: Act II
SCOTUSblog Second Amendment drama: Act II
McDonald et al v City of Chicago
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DonD
Member
I am eagerly looking forward to seeing one of the most corrupt politicans in the nation, Rotten Richard Daley, crying in his beer after his city's anti gun laws get overturned.
Throw the BUM out. Don
Throw the BUM out. Don
Sorry, Don. McDonald won't overturn a thing.
What it will do is give Citizens the means to bring suit to have them overturned. In all States. But the decision won't come until maybe April. And then Chicago, et. al. will act like D.C. to delay and deny.
I just want to be able to listen to the arguments. Any suggestions as to where?
What it will do is give Citizens the means to bring suit to have them overturned. In all States. But the decision won't come until maybe April. And then Chicago, et. al. will act like D.C. to delay and deny.
I just want to be able to listen to the arguments. Any suggestions as to where?
DonD
Member
I don't pretend to be a legal scholar but even DC had to back down. I think you're right, they'll try to cooperate as little as possible but if the ruling goes against them, the absolute ban in handguns will have to go and yes, they'll play "rope a dope" just like DC, the scumbags. If the ruling goes against them, their days of stringent anti gun laws are limited.
I saw an article in today's newspaper that said that the attorney generals of some 36 states had filed amicus briefs in favor of McDonald. Petty solid support. Don
IMHO
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-1521.pdf
I just finished reading the transcript for the oral arguments today. I think, IMHO, that we are heading towards full incorporation of the 2nd. I am guessing that it will be a greater majority than what we saw in Heller (5-4). It looks like Breyer might be the only hold out. So, I am guessing a majority in the line of 7-2 or 8-1.
The handgun ban will fall in Chicago and anywhere else in the US where handguns are banned. We will also see any law that requires a gun to be locked or made inoperable fall as well as that was covered under Heller.
The next steps of course will follow. After the decision is released in April or June we should be seeing lawsuits in NJ, MA, CA and the like going after Assault Weapons Bans and magazine capacity restrictions. Based on Heller, I think those will fall as well. Governments will have a hard time justifying those types of bans under the conditions set forth in Heller.
Permitting systems may eventually be ruled constitutional. If they are applied equally and are not a de facto ban, governments can make a valid argument for such things such assuring that guns are not being sold to criminals and mentally ill.
I think when the decision is released it will be a good day for the Second Amendment.
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-1521.pdf
I just finished reading the transcript for the oral arguments today. I think, IMHO, that we are heading towards full incorporation of the 2nd. I am guessing that it will be a greater majority than what we saw in Heller (5-4). It looks like Breyer might be the only hold out. So, I am guessing a majority in the line of 7-2 or 8-1.
The handgun ban will fall in Chicago and anywhere else in the US where handguns are banned. We will also see any law that requires a gun to be locked or made inoperable fall as well as that was covered under Heller.
The next steps of course will follow. After the decision is released in April or June we should be seeing lawsuits in NJ, MA, CA and the like going after Assault Weapons Bans and magazine capacity restrictions. Based on Heller, I think those will fall as well. Governments will have a hard time justifying those types of bans under the conditions set forth in Heller.
Permitting systems may eventually be ruled constitutional. If they are applied equally and are not a de facto ban, governments can make a valid argument for such things such assuring that guns are not being sold to criminals and mentally ill.
I think when the decision is released it will be a good day for the Second Amendment.
DonD
Member
I didn't read all that was posted on this thread, I did read commentary on USAToday.
It appeared the Breyer and Stevens were opposed to McDonald. If so, they're more left wing loonies than I thought.
If one reads the personal writings of people like Jefferson, Washington etc. it is very clear that they strongly endorsed private firearms ownership. I guess Breyer and Stevens think their views and attitudes are more compelling than those who were major players in the Constitution and the Bill of Rights. Sad. Don
It appeared the Breyer and Stevens were opposed to McDonald. If so, they're more left wing loonies than I thought.
If one reads the personal writings of people like Jefferson, Washington etc. it is very clear that they strongly endorsed private firearms ownership. I guess Breyer and Stevens think their views and attitudes are more compelling than those who were major players in the Constitution and the Bill of Rights. Sad. Don
Chicago kept arguing a question that wasn't presented.
The Second will be incorporated. The question presented was how is it to be incorporated.
In my amatuer constitutioal lawyer view, if the Due Process position is accepted then every single State gun control law would have to be fought in courts up to the Federal Circuit level and maybe even to SCOTUS. Again. That was in my mind the Court's error in Heller and what has given D.C. such lattitude to ignore the Courts ruling.
If on the other hand the Privileges and Immunities position is accepted then in one swell-foop every 2nd amendment infringment will be held un-constitutional. With the added benefit of having to reverse Slaughter House, Cruikshank, and Presser. (Cruikshank relied on Slaughter House and Presser relied on Cruikshank. All three being racist in effect.)
Just getting the question to SCOTUS was a victory!
The Second will be incorporated. The question presented was how is it to be incorporated.
In my amatuer constitutioal lawyer view, if the Due Process position is accepted then every single State gun control law would have to be fought in courts up to the Federal Circuit level and maybe even to SCOTUS. Again. That was in my mind the Court's error in Heller and what has given D.C. such lattitude to ignore the Courts ruling.
If on the other hand the Privileges and Immunities position is accepted then in one swell-foop every 2nd amendment infringment will be held un-constitutional. With the added benefit of having to reverse Slaughter House, Cruikshank, and Presser. (Cruikshank relied on Slaughter House and Presser relied on Cruikshank. All three being racist in effect.)
Just getting the question to SCOTUS was a victory!
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Pasifikawv
Member
Nice work on the analysis... By going the P&I, I think it also opens the door to applying "strict scrutiny" to any measure that restricts the RTKBA as is done with the review of any law/policy affecting any other "fundemental" right.
I was working on a text that assumes incorporation via P&I when the final opinion of McDonald is issued in June. Does it make sense?
-------
With the Heller v. DC and the McDonald v. Chicago cases, settled law is being established with regards to the right to keep and bear arms. Three core concepts are expected as a result of Heller and McDonald:
RTKBA is an "individual" right – not merely a “militia” right
RTKBA is a "fundamental” right – not merely a “liberty interest.”
RTKBA is protected from unjustifiable infringement by state and local governments.
Moving forward, as gun control policies are implemented (or existing laws reviewed), any legal review should necessarily utilize strict scrutiny. Indeed, the courts always apply the strictest scrutiny to local or federal action whenever any fundamental right is involved.
Using a strict scrutiny review, jurisprudence asks: 1) Is the policy justified by a compelling governmental interest that is both necessary and crucial? 2) Is the policy narrowly tailored to achieve the intended goal? 3) Is the policy the least restrictive possible means for achieving the intended goal?
Just as screaming fire in a crowded theatre isn’t protected speech, the RTKBA is not without limits. Regulations intended to keep firearms out of the hands of violent felons should pass strict scrutiny. The Firearms Control Act prohibiting automatic and “sawed-off” weapons without licensure from the ATF probably would pass muster. Bans on handguns, popular self-loading rifles, cosmetic features, and standard accessories should fail. Laws disregarding the “full faith and credit” of state-issued carry licenses should fail.
A judicious review of policies using strict scrutiny defeats “knee-jerk” laws that violate fundamental rights, but allows effective, narrowly tailored limitations determined necessary and crucial for the public interest. A compelling state interest argument to restrict a fundamental right is held to far higher standard than policies affecting mere “liberty interests.”
As an issue of public policy, anti-gun laws simply do not work to reduce violent crime or keep weapons out of the hands of criminals. Massive social-science research, including the results of criminological, historical and econometric studies by reputed scholars, shows the ineffectiveness of gun control in reducing crime and violence.
Instead, policy makers should address the sources of violent behavior. Focusing on conflict resolution, alternatives to violence, problem-solving, character building, and critical thinking in our schools and communities will reduce violence. With ineffective and misguided gun control measures unable to withstand strict scrutiny, policy makers will be forced to consider alternative policy proposals that will succeed in reducing crime and violence.
DonD
Member
Sadly, some of the very same politicians who so strongly oppose the RTKBA want to restore voting privileges to felons, something I strongly object to.
By the way, does anyone know if the Supreme Court stated when they would rule on McDonald VS Chicago? Thanks, Don
Thanks for the complment! Again I'm an amatuer but have been following this stuff for about 15 years. I'm one of those very odd people who enjoy reading court briefs and history on the subject.
My comments are imbedded, and please do tell me where you disagree.
You seem to be waffling between 'shall not be infringed' and "some infringment is OK." (My major beef with the Heller decision.)
Another historical lookup for you: Athens, TN in, I believe, 1948.
Now, just to stir the mix: Government mandated training: Pass or not?
My comments are imbedded, and please do tell me where you disagree.
Nice work on the analysis..
By going the P&I, I think it also opens the door to applying "strict scrutiny" to any measure that restricts the RTKBA as is done with the review of any law/policy affecting any other "fundemental" right.
The Court seemed unhappy with the prospect of P&I as it would require reversing three long standing precedents. Compicated. The NRA idea of Due Process is simpler but leaves precedents in place that should not be.
I 'think' that "strict scrutiny" could be of any incorporation, P&I or DP.
I was working on a text that assumes incorporation via P&I when the final opinion of McDonald is issued in June. Does it make sense?
-------
With the Heller v. DC and the McDonald v. Chicago cases, settled law is being established with regards to the right to keep and bear arms. Three core concepts are expected as a result of Heller and McDonald:
RTKBA is an "individual" right – not merely a “militia” right
Look up a sentence diagram of the 2nd. The militia clause is a 'nominative absolute', meaning that it is a complete sentence with no direct connection to the rest of the 2nd. It is the same as "The right of the people to keep and bear Arms, shall not be infringed. A well regulated Militia, being necessary to the security of a free State[period]" Also a preferatory clause giving a reason for that following was common practice at the time, and punctuation was generally left to the secretary/printer/copyist.
(Look up a discription of the major Revelotionary battle in the South: Cow Pens, South Carolia. Regular, Organized Militia and, Unorganized Militia were used to defeat a very tough opponant and end England's occupation of the South.)
A 'Militia' right makes no sense as a Government controled/Collective right can not be an Individual Right.
RTKBA is a "fundamental” right – not merely a “liberty interest.”
I'm not sure I understand that. And, really never have. I think that the words as and when they were written is all that needs to be considered. "Fundamental", to me, gets into a fuzzyness that should not be in the law. "Liberty interest" I do understand: I have the Right and should have the means, to maintain and defend the liberty of myself and Country.
RTKBA is protected from unjustifiable (what is unjustifiable? The 2nd says "shall not be infringed." It makes no mention of 'except when the Govenment think an infringment might be a 'good thing'. infringement by state and local governments and federal.
Moving forward, as gun control policies are implemented (or existing laws reviewed), any legal review should necessarily utilize strict scrutiny. Indeed, the courts always apply the strictest scrutiny to local or federal action whenever any fundamental right is involved.
Using a strict scrutiny review, jurisprudence asks: 1) Is the policy justified by a compelling governmental interest that is both necessary and crucial? 2) Is the policy narrowly tailored to achieve the intended goal? 3) Is the policy the least restrictive possible means for achieving the intended goal?
I believe that is wrong. Strict scrutiny would ask just one question: Is the law an infringment of a Constitutional Right. If yes then the law should be held unconstitutional and struck.
Just as screaming fire in a crowded theatre isn’t protected speech, the RTKBA is not without limits. (Ya' got my hot button on that one!) IT IS PROTECTED SPEACH!!! The reason and results of 'screaming fire' may be actionable but an actor speaking dialog in a play or in a film, IS protected. The same reasoning applies to the 2nd.
Regulations intended to keep firearms out of the hands of violent felons should pass strict scrutiny. Maybe. Felons are Citizens, are they not? Albeit with restriced Rights. But when their complete sentences have been served they should, automaticaly, have all Rights restored. ("If they are a danger to society why are they out?") The Firearms Control Act prohibiting automatic and “sawed-off” weapons without licensure from the ATF probably would pass muster. Not in a strict scrutiny analisys. Bans on handguns, popular self-loading rifles, cosmetic features, and standard accessories should fail. Agreed. With the addition of ANY arms. As long as I do not violate any of the other laws dealing with murder, assault, etc. why should my, or any Citzens', Rights be infringed if I want to have a fully functional 105 Recless? Laws disregarding the “full faith and credit” of state-issued carry licenses should fail. Disagree in that all federal, state or locality licenses would fail.
Remember, you are arguing that the 2nd should be incorporated under the Privileges and Immunities Clause. Should a resident of Vermont have to get a license to go to Illinois? Or Georgia?
A judicious review of policies using strict scrutiny defeats “knee-jerk” laws that violate fundamental rights, but allows effective, narrowly tailored limitations determined necessary and crucial for the public interest. A compelling state interest argument to restrict a fundamental right is held to far higher standard than policies affecting mere “liberty interests.”
As an issue of public policy, anti-gun laws simply do not work to reduce violent crime or keep weapons out of the hands of criminals. Massive social-science research, including the results of criminological, historical and econometric studies by reputed scholars, shows the ineffectiveness of gun control in reducing crime and violence.
Instead, policy makers should address the sources of violent behavior. Focusing on conflict resolution, alternatives to violence, problem-solving, character building, and critical thinking in our schools and communities will reduce violence. With ineffective and misguided gun control measures unable to withstand strict scrutiny, policy makers will be forced to consider alternative policy proposals that will succeed in reducing crime and violence.
You seem to be waffling between 'shall not be infringed' and "some infringment is OK." (My major beef with the Heller decision.)
Another historical lookup for you: Athens, TN in, I believe, 1948.
Now, just to stir the mix: Government mandated training: Pass or not?
Pasifikawv
Member
I would hope that strict scrutiny would apply regardless of which avenue is used to incorporate.
We agree regarding the structure of 2A and the decision that it is indeed an individual right. Gun-grabbers like to argue the collective/militia angle, but that doesn’t work. Heller at least settled that…
Yeah, that whole fundamental thing threw me for a loop. I think that the way it is used in legal-speak is a bit different than regular usage. The Supreme Court has held that some rights are so fundamental, that any law restricting such a right must both serve a compelling state purpose, and be narrowly tailored to that compelling purpose – i.e. withstand the strictest scrutiny. Typically, these rights are enshrined in the U.S. Constitution and are given a high degree of judicial deference in conflicts between individual liberty and governmental intrusion. (Really, I still don’t get it completely, but think I have some grasp.) The Brady Bunch argues that gun ownership isn’t a “fundamental” right but only a lesser “liberty interest.” Intrusion on a “liberty interest” must only satisfy a “rational basis” test. A liberty interest isn’t given the same level of judicial deference as a fundamental right.
There are limits to all rights. Certain laws against slander and liable may withstand strict scrutiny even though we have free speech and free press. That said, most laws that attempt to restrict a fundamental right are struck down when strict scrutiny is applied. The legal deference is to the right – not the gov’t intrusion.
As for your pot stirring: I am opposed to any law that would require mandatory training in order to purchase or own a firearm.
That said, I personally think anyone who wants to carry a sidearm should be trained and should practice/train regularly. I am a firm believer in training. Whether or not a law mandating such training would withstand strict scrutiny is debatable.
I think requiring permits to carry concealed and requiring training for issuance of that permit likely would stand IF and ONLY IF the details of the policy withstand strict scrutiny. If the law dictates that the only acceptable demonstration of acceptable training is measured by a shooter’s ability to hit a ½” circle 9 times out 10 from 50 yards with a 3” barreled sidearm, that would not pass strict scrutiny. Then again, we don’t use literacy tests for folks to vote, and I also personally believe that folks should be informed and know how to read if they want to vote. But we may require that they register in advance … Again, it comes back to the issue of strict scrutiny in how we evaluate the substance any particular law… Does it serve a compelling public interest; is it as least restrictive as absolutely possible; is it sufficiently narrow; does it actually work and achieve the interest/goal?? Most laws don’t get past strict scrutiny. Bad laws never should...
I accept the 'fundamental' explanation. Still don't like the 'fuzziness' but it is far better than your explanation of 'liberty intrest'. I also did not understand the origins of the 'liberty interest' phrase. And leaves Chicago's 'ordered liberty' argument in the dust. Even the Justices had problems with that one.
(The Brady Bunch and “rational” in the same sentence. (snicker) Good one!)
Again, I have a problem with a fundamental Right being circumscribed by limits that do nothing but demean the whole concept of a fundamental Right and thereby turning it into a privilige.
In terms of training, I fail to see the difference between open carry and concealed carry. Why is one more worthy of a government licensing/training program than the other? In Georgia one must have a license to carry openly or concealed. But, for right now there is no training requirement. I have been told, by people I trust, that the criminals train more than we enthusiasts do and we train more than the cops. Govenment mandated training seems to be pushed by two groups: Those who make their living by providing training and; Those who want to use the training program to deny a Right.
Virginia and Ohio have unlicensed open carry, Vermont and Alaska have unlicensed carry openly or concealed. I have seen no problems in those states.
Good discussion! You've clarified some things for me and I hope I have done the same for you. But it's bed time so I'll have to end for now.
(The Brady Bunch and “rational” in the same sentence. (snicker) Good one!)
I disagree. If a Right can be limited, by the Government, it becomes a privilege. That's why Heller and McDonald were brought. Since the 14th was ratified, Slaughter House, etc. have turned a Right into a privilege, who's administration was left in the care of the States. Those States, in most cases, imposed limits on only some Citizens until just recently. In my view, penalties exist if, in the exersize of my Rights, I violate your Rights. The old saw about your Rights stop at the end of my nose.
Again, I have a problem with a fundamental Right being circumscribed by limits that do nothing but demean the whole concept of a fundamental Right and thereby turning it into a privilige.
In terms of training, I fail to see the difference between open carry and concealed carry. Why is one more worthy of a government licensing/training program than the other? In Georgia one must have a license to carry openly or concealed. But, for right now there is no training requirement. I have been told, by people I trust, that the criminals train more than we enthusiasts do and we train more than the cops. Govenment mandated training seems to be pushed by two groups: Those who make their living by providing training and; Those who want to use the training program to deny a Right.
Virginia and Ohio have unlicensed open carry, Vermont and Alaska have unlicensed carry openly or concealed. I have seen no problems in those states.
Good discussion! You've clarified some things for me and I hope I have done the same for you. But it's bed time so I'll have to end for now.
Pasifikawv
Member
A very good discussion indeed. Many thanks to you, sir.
Permitting and licensing issues aside, I see no difference between open v. concealed carry in terms of training. I am of the opinion that if one chooses to carry, you should know how to use your sidearm properly and efficiently. My holding that personal opinion should in no way empower gun control extremist to use some trumped up notion of training as a means to make legal carry unreachable or to impose a gov't mandated training regimen that could never be satisfied.
While I am an ardent support of 2A rights, you won't find me arguing that shoulder-fired anti-aircraft stinger missiles and suitcase nukes should be sold without restriction at the neighborhood Mall-Wart. While I am an ardent supporter of assembly and free association, you won't find me arguing that a bunch of granola munchers can bring the nation to gridlock by having smoke-filled sit-ins on Interstate highways whenever they want. While I am an ardent support of free speech, you won't find me arguing that one can erect at will a profanity and pornography filled billboard advocating for the assassination of the local parish priest. Limits that withstand an honest application of strict scrutiny have a proper place in our Republic. However, we must always be vigilant against unjust limitations that don't pass muster.
I heard a statistic on a Pursuit channel show that the average LEO fires on average a mere 100 rounds per year. I average more than that each month. If I had access to free ammo as most LEOs do, I'd put tons more lead down range...
Permitting and licensing issues aside, I see no difference between open v. concealed carry in terms of training. I am of the opinion that if one chooses to carry, you should know how to use your sidearm properly and efficiently. My holding that personal opinion should in no way empower gun control extremist to use some trumped up notion of training as a means to make legal carry unreachable or to impose a gov't mandated training regimen that could never be satisfied.
While I am an ardent support of 2A rights, you won't find me arguing that shoulder-fired anti-aircraft stinger missiles and suitcase nukes should be sold without restriction at the neighborhood Mall-Wart. While I am an ardent supporter of assembly and free association, you won't find me arguing that a bunch of granola munchers can bring the nation to gridlock by having smoke-filled sit-ins on Interstate highways whenever they want. While I am an ardent support of free speech, you won't find me arguing that one can erect at will a profanity and pornography filled billboard advocating for the assassination of the local parish priest. Limits that withstand an honest application of strict scrutiny have a proper place in our Republic. However, we must always be vigilant against unjust limitations that don't pass muster.
I heard a statistic on a Pursuit channel show that the average LEO fires on average a mere 100 rounds per year. I average more than that each month. If I had access to free ammo as most LEOs do, I'd put tons more lead down range...
Pasifikawv
Member
Yeah, it seems pretty cut-n-dry to me too. The Brady Bunch and their gun-hating ilk argue that it is not, but I am confident that they are gonna loose. Heller indicated as much - at least in regards to federal action.
Once incorporated, I hope the same strict scrutny standard will apply to any state or local action affecting the 2A as it does with other fundemental rights. That will kill bogus anti-gun laws that only punish law-abiding owners but do nothing to stem the tide of crime and violence.
I can't wait to see the final opinion in late June and I hope I am not dissatisfied.
(Pasifikawv, sorry I've been away. Stuff, ya' know.)
I came across an interesting explanation of 'Due Process'. From what I read there are two types: 'Procedural Due Process' and 'Substansive Due Process'.
PDP deals with 5A issues.
SDP on the otherhand is, in my amatuer reading, is used in two ways. One is to identify a line of cases.
Under the 14th, if the Court determins that a 'fundamental right' is being violated, then it applies 'strict scrutiny' to determine if a compelling state interest is being furthered by continued violation and if the law in question has been written narrowly enough to address the state interest.
SDP is a reletively new concept (about the 1930's). Some do not like the concept arguing that those issues should left to the legislature not the courts. (Legislating from the bench, anyone?)
If the NRA's incorporation under the Due Process Clause of the 14th position is accepted by the Court, every little podunk villiage will be able to tie up the lower courts for years resulting in the waste of lives, money, and time. On the upside it will insure a steady income stream for NRA-ILA for generations to come. We Citizens will have gained nothing, and we'll have to revisit the subject, only next time it will be much harder to get cert.
I came across an interesting explanation of 'Due Process'. From what I read there are two types: 'Procedural Due Process' and 'Substansive Due Process'.
PDP deals with 5A issues.
SDP on the otherhand is, in my amatuer reading, is used in two ways. One is to identify a line of cases.
Under the 14th, if the Court determins that a 'fundamental right' is being violated, then it applies 'strict scrutiny' to determine if a compelling state interest is being furthered by continued violation and if the law in question has been written narrowly enough to address the state interest.
SDP is a reletively new concept (about the 1930's). Some do not like the concept arguing that those issues should left to the legislature not the courts. (Legislating from the bench, anyone?)
If the NRA's incorporation under the Due Process Clause of the 14th position is accepted by the Court, every little podunk villiage will be able to tie up the lower courts for years resulting in the waste of lives, money, and time. On the upside it will insure a steady income stream for NRA-ILA for generations to come. We Citizens will have gained nothing, and we'll have to revisit the subject, only next time it will be much harder to get cert.
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