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Offline AAllen

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Chicago vs. McDonald heard today
« on: March 02, 2010, 04:43:46 PM »
http://www.scotusblog.com/2010/03/analysis-2d-amendment-extension-likely/#more-17012

Analysis: 2d Amendment extension likely
McDonald v. Chicago, 08-1521, Argument recap
Lyle Denniston | Tuesday, March 2nd, 2010 11:26 am
 
Analysis

The Supreme Court on Tuesday seemed poised to require state and local governments to obey the Second Amendment guarantee of a personal right to a gun, but with perhaps considerable authority to regulate that right.  The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment?s guarantee of ?due process,? since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge.

When the Justices cast their first vote after starting later this week to discuss where to go from here, it appeared that the focus of debate will be how extensive a ?right to keep and bear arms? should be spelled out: would it be only some ?core right? to have a gun for personal safety, or would it include every variation of that right that could emerge in the future as courts decide specific cases? The liberal wing of the Court appeared to be making a determined effort to hold the expanded Amendment in check, but even the conservatives open to applying the Second Amendment to states, counties and cities seemed ready to concede some ? but perhaps fewer ? limitations. The eagerly awaited oral argument in McDonald, et al., v. Chicago, et al. (08-1521) found all members of the Court actively involved except the usually silent Justice Clarence Thomas.  And, while no one said that the issue of ?incorporating? the Second Amendment into the 14th Amendment had already been decided before the argument had even begun, the clear impression was that the Court majority was at least sentimentally in favor of that, with only the dimensions of the expansion to be worked out in this case and in a string of likely precedents coming as time went on.

An attempt by an attorney for the cities of Chicago and Oak Park, Ill., defending local bans on handguns in those communities, to prevent any application of the constitutional gun right to states, counties and cities looked forlorn and even doomed.  The nub of that argument by James A. Feldman of Washington was that, unlike other constitutional rights that the Court has extended to the state and local level, the right to a gun recognized by the Court two years ago in District of Columbia v. Heller pitted the threat that guns pose to human lives against a constitutional right, so the balance should be struck differently.  So far as the hearing Tuesday showed, Justice Stephen G. Breyer was the only member of the Court attracted to that approach.

Justice Breyer drew only thinly veiled ridicule from conservatives on the Court when he suggested that there be a constitutional ?chart? drawn up to rank the higher and lower priorities of rights that would be protected against state and local infringement ? perhaps the highest rank safeguarding the right to have a gun in community self-defense (as with a ?militia?) but with a decidedly lower rank for a right to ?shoot burglars.?  While that idea drew no support, the notion that the Second Amendment right restricting state and local gun laws would not be an absolute right had significant appeal, it appeared.

The first argument to collapse as the hearing unfolded was the plea by the lawyer for gun rights advocates, Alan Gura of Alexandria, Virginia, that the Court should ?incorporate? the Second Amendment into the 14th Amendment through the ?privileges or immunities? clause.   In the first comment from the bench after Gura had barely opened, Chief Justice John G. Roberts, Jr., noted that the Court had essentially scuttled that argument with its ruling in the SlaughterHouse Cases in 1873.  And within a few minutes, Justice Antonin Scalia ? the author of the Heller opinion and the Court?s most fervent gun enthusiast ? was sarcastically dismissing the ?privileges or immunities? argument.

?Why,? Scalia asked Gura, ?are you asking us to overrule 140 years of prior law?.unless you are bucking for a place on some law school faculty.?  The Justice said the ?privileges or immunities? argument was ?the darling of the professorate? but wondered why Gura would ?undertake that burden.?  And Scalia noted that the ?due process? clause ? an open-ended provision that he has strongly attacked on other occasions?  was available as the vehicle for incorporation, and added: ?Even I have acquiesced in that.?   Gura somewhat meekly said ?we would be extremely happy:? if the Court used the ?due process? clause to extend the Second Amendment?s reach.

Justice Ruth Bader Ginsburg, one of the dissenters in Heller, then moved in to press Gura on just what ?unenumerated rights? would be protected if the Court were to revive the ?privileges or immunities? clause. It was a theme that would recur often thereafter, solidifying the appearance that the argument had virtually no chance of succeeding.  (In fact, when Gura near the end of the argument returned to the podium for his rebuttal, his time was used up by Justices Ginsburg and Anthony M. Kennedy exploring what other rights might come into being if the Court gave new life to the ?privileges or immunities? clause.  He responded that he could not provide a full list, to which Justice Scalia retorted: ?Doesn? t that trouble you??  It was obvious that it troubled the Court.)

When Gura?s argument moved on to the general question of ?incorporation? of the Second Amendment, Justice John Paul Stevens explored whether such an extension would ?apply to all of the Second Amendment? ? including any court interpretations that ensued ? or only ?a homeowner?s right to protect against intruders in the home? ? the specific right that Heller recognized.  Gura responded that the Second Amendment ?was not so limited.?  Stevens then asked whether the right would include ?a right to parade around in the streets with a gun.?  Gura said that the states and cities would have to obey a right that was fully equal to all rights embraced by the right to keep and bear arms.

Justice Kennedy soon joined in that exchange, and asked whether ?incorporation? would embrace ?all of the refinements? that courts would make in interpreting the right, or ?just the core of the right.? Gura left no doubt that gun rights advocates were seeking the full panoply of whatever gun rights the Amendment were found to cover.

The remainder of Gura?s time was spent amid an exchange between Breyer and Scalia over whether courts should give the Second Amendment lesser scope based on statistics about the social cost that would result in people killed from others? use of gun rights.   Gura was essentially a bystander as the two Justices jousted over that issue.

The Court then got the focus that a majority seemed to be hoping for: a full-scale plea, by former Solicitor General Paul D. Clement, to use the ?due process clause? as the vehicle for extending gun rights to the state and local level.  And it was during Clement?s time at the podium that the Court?s liberal bloc began making a case ? which Clement essentially resisted ? to limit the ?incorporated? right to, at most, some core guarantee, without all of the variations that would later develop.  Clement noted that there were ?not a lot? of variations of the gun right yet, since Heller was the only precedent so far, and that was limited to gun rights for self-defense in the home.

Clement, however, said that the Court should allow a ?carryover? into the 14th Amendment of all of the jurisprudence that develops on the Second Amendment?s scope.  There should not be a Second Amendment right and then a mere ?shadow? of it that applied to state and local government, he argued.  He did concede, though, that constitutional gun rights might be allowed to develop differently at the state and local level than at the federal level.  But that, he said, is different from creating only a ?shadow? right applied to state and local laws.

The Court?s strong leanings in the case became even more evident during questioning of Feldman, the lawyer for the two cities involved in the case.  Although he absolutely needs the vote of Justice Kennedy if his plea is to prevail, he almost immediately frustrated Kennedy by arguing that gun rights were not an essential attribute of ?ordered liberty,? thus questioning whether such rights qualify as fundamental.  If they are not, Kennedy shot back, then the Heller decision was wrongly decided.   And Chief Justice Roberts told Feldman that there was no way to read the Heller opinion to make the Second Amendment seem a less important right.

Tellingly, however, the Chief Justice commented that ?we haven?t said anything about what the content of the Second Amendment is,? so that, over time, it may develop that state and local governments may well be allowed to impose restrictions, such as bans on carrying concealed weapons.  And Scalia reminded Feldman that the Court in the Heller decision had left room for some regulation of guns even though the Second Amendment now embraced a personal right to have a gun.  Kennedy also noted that ?there are provisions of the Constitution? that allow states to have ?significant latitude? in regulating what those provisions seek to protect.

Feldman made no headway with an argument that state and local political processes should be left to develop gun control policy, unimpeded by the Second Amendment or its equivalent.  Some cities, he said, might conclude that ?a ban on handguns is the best way to protect people,? and yet Heller says that the Second Amendment forbids such a ban.  That was, in essence, a total rejection of the idea of ?incorporation,? and it was by then more than evident that there was no majority for such a rejection.   He also scored no points with a complaint that ?incorporation? of the Second Amendment would go a long way toward establishing a national constitutional right of ?self-defense,? which he said the Court has never mandated and should not now.  For 200 years, he said, it has been up to state and local government to sort out when self-defense was justified.  No member of the Court seemed persuaded that that was now at stake in the Second Amendment context.


Offline DanClrk51

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Re: Chicago vs. McDonald heard today
« Reply #1 on: March 03, 2010, 12:41:25 AM »
I find the conservative wing's thoughts quite troubling. Even though this case seems to be going in our favor I am very worried what their wording on the 2nd Amendment will be. I find it quite scary what Chief Justice Roberts said:

the Chief Justice commented that ?we haven?t said anything about what the content of the Second Amendment is,? so that, over time, it may develop that state and local governments may well be allowed to impose restrictions, such as bans on carrying concealed weapons"

This is very disturbing considering that it is "the right to keep and bear arms". The amendment does not define bear in any way so all forms of bearing should be constitutional whether concealed or not.

The second part that has me worried is this one:

"And Scalia reminded Feldman that the Court in the Heller decision had left room for some regulation of guns even though the Second Amendment now embraced a personal right to have a gun."

Again, the second amendment reads only "A well regulated Militia". It does not read "the right of the people to keep and bear regulated arms". The right shall not be infringed. In my opinion that means no regulation of guns. Now obviously anyone in jail or in prison does not have that right because it would be an impossibility. Now whether felons who have served their time can regain this right should be up to discussion by the court. Anything else (registration, magazine limits, bans on certain types of guns, banning the carrying of arms) is an infringement.

Offline mustang5o

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Re: Chicago vs. McDonald heard today
« Reply #2 on: March 03, 2010, 10:17:52 AM »
These kind of bothered me.

Justice Ruth Bader Ginsburg, one of the dissenters in Heller, then moved in to press Gura on just what ?unenumerated rights? would be protected if the Court were to revive the ?privileges or immunities? clause. It was a theme that would recur often thereafter, solidifying the appearance that the argument had virtually no chance of succeeding.  (In fact, when Gura near the end of the argument returned to the podium for his rebuttal, his time was used up by Justices Ginsburg and Anthony M. Kennedy exploring what other rights might come into being if the Court gave new life to the ?privileges or immunities? clause.  He responded that he could not provide a full list, to which Justice Scalia retorted: ?Doesn? t that trouble you??  It was obvious that it troubled the Court.)

It troubles the court that citizens of the US could have more rights?  I understand we don't know what all could be concluded but it sounds like something else that needs to be addressed.  However, each case can only address what is being brought before them. 

The remainder of Gura?s time was spent amid an exchange between Breyer and Scalia over whether courts should give the Second Amendment lesser scope based on statistics about the social cost that would result in people killed from others? use of gun rights.

Someone who used their right to own a gun to kill becomes a murderer, a criminal, not a social issue and you deal with them as a criminal.  Same as they SHOULD be now.

Some interesting links for further reading.

http://www.washingtonexaminer.com/opinion/columns/OpEd-Contributor/Chicago-versus-the-Second-Amendment-85683127.html

http://www.independent.org/newsroom/news_detail.asp?newsID=143

http://www.independent.org/store/book_detail.asp?bookID=23

http://www.independent.org/store/book_detail.asp?bookID=72

Offline jp

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Re: Chicago vs. McDonald heard today
« Reply #3 on: March 03, 2010, 11:35:35 AM »
I could rant for quite a while about this one but I don't have the time so I'll just say this.  If the court decides that the 2nd amendment does not have to be honored by state and local governments then shouldn't that same reasoning apply to all of the other amendments as well?  If state and local governments do not have to honor the 2nd Amendment then state and local governments should be able to: 1) infringe on free speech  2) choose to restrict who is allowed to vote such as women and minorities  3) allow slavery etc. etc.  I'm certainly no constitutional scholar but it seems to me that if lower levels of government can choose not to honor one amendment then that will open one really big can o' worms.  And just so no one misinterprets, I am definitely NOT in favor of infringing free speech, removing anyone's right to vote, or reinstituting slavery.

Offline RLMoeller

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Re: Chicago vs. McDonald heard today
« Reply #4 on: March 03, 2010, 11:52:17 AM »
I agree with you and have been having similar thoughts.   Either the Bill of Rights applies everywhere or it doesn't.  Heaven help us if they decide it doesn't.


Offline Jesse T

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Re: Chicago vs. McDonald heard today
« Reply #5 on: March 03, 2010, 12:19:00 PM »
The general consensus is that the hearing went "well" for the good guys.  

Also go read this satire of the entire proceedings. quite hilarious. :D

http://www.politicsgunsandbeer.com/2010/03/02/my-summary-of-the-oral-arguments/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+politicsgunsandbeer+%28Politics%2C+Guns+%26+Beer.%29
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Offline RLMoeller

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Re: Chicago vs. McDonald heard today
« Reply #6 on: March 03, 2010, 12:39:24 PM »
Thanks for the link Jesse, that is excellent!

Offline Dtrain323i

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Re: Chicago vs. McDonald heard today
« Reply #7 on: March 04, 2010, 10:03:42 AM »
I was pleasantly surprised by Paul Clement. He did a very good job of supplementing Gura's arguments. Gura should have known that Privileges and Immunities would never fly. Slaughterhouse wasn't getting overturned and he should have recognized that.

Offline Hardwood83

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Re: Chicago vs. McDonald heard today
« Reply #8 on: March 04, 2010, 10:56:11 AM »
I have read a lot of commentary on this that ranges from: 'it went ok' to 'OUTSTANDING!'. I am confident they will hand down the obviously correct decision- of course the 2nd Amendment is incorporated, just like all the others. The question is will it be a strict or broad scrutiny? Will they allow for any 'reasonable' restriction that a crap-hole like Chicago can dream up, or set the bar high. My guess is it will be a lot like the DC v Heller case. It will answer THE question, but provide little guidance and many more lawsuits will follow to shape things. 

It is very discouraging that the very intelligent people entrusted with interpreting the Constitution and have spent their lives studying the law seem so mystified by it's obvious and clear intent. It is more troubling that several of them are NOT mystified at all, but know exactly what it states- they simply don't care.   
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Offline AAllen

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Re: Chicago vs. McDonald heard today
« Reply #9 on: March 04, 2010, 11:22:01 AM »
Gura had been requested by the court to include the Privileges and Immunities clause, I think they were looking for a new and exciting reason to take a look at it.  The dicission then was made that Gura and the SAF would go that route and Clement and the NRA would argue the due process clause, that way all the bases were covered and they gave the court what it requested.  Chicago basically did a poor job of arguing either.  The problem is there really isn't a new reason to invoke the Privileges and Immunities clause that the court has not already to some degree shot down in the Slaughterhouse cases, unless you want to argue that court failed to due it's job and bowed to political pressure (which it did, but thats a loosing argument).

Offline Eagle1

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Re: Chicago vs. McDonald heard today
« Reply #10 on: March 04, 2010, 12:58:03 PM »
Did anybody else hear the Law Proffesor ,I am assuming from the Chicago area, say that if this goes in favor of McDonald that it will open the doors to such things as unrestricted abortions?
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