-
If you enjoy the forum please consider supporting it by signing up for a NES Membership The benefits pay for the membership many times over.
Gura brief was filed today.
- Thread starter PaulD
- Start date
- Joined
- May 17, 2008
- Messages
- 16,975
- Likes
- 2,820
This looks interesting.
http://www.scotusblog.com/wp/history-lesson-on-2nd-amendments-reach/
This chicago ruling may have a much larger reach than the 2A.
http://www.scotusblog.com/wp/history-lesson-on-2nd-amendments-reach/
This chicago ruling may have a much larger reach than the 2A.
Wow, I didn't expect Gura to go quite so whole hog in the P&I direction. I kept reading the extensive documentation on the history of P&I, and wondered when he'd get to the backup plan of the due process clause. If it works, this is going to be one hell of a landmark case.
Follow up-CBS spin
http://www.cbsnews.com/blogs/2009/11/17/taking_liberties/entry5684166.shtml
November 17, 2009 1:08 PM
Second Amendment Protects All Americans, Supreme Court Told
Posted by Declan McCullagh
(WCBS)
Gun rights advocates have sketched out arguments they hope will convince the U.S. Supreme Court that no state can be a Second Amendment-free zone.
In a 73-page legal brief filed on Monday, the groups representing four Chicago residents asked the Supreme Court to overturn the city's extremely restrictive firearms laws, some of the most severe in the nation.
"It is unfathomable that the states are constitutionally limited in their regulation of medical decisions or intimate relations, because these matters touch upon personal autonomy, but are unrestrained in their ability to trample upon the enumerated right to arms designed to enable self-preservation," says the brief, written by attorneys Alan Gura of Alexandria, Va. and David Sigale of Lisle, Ill. on behalf of the Second Amendment Foundation.
Translation: Even though abortion is not mentioned anywhere in the U.S. Constitution, courts have nevertheless declared it to be a fundamental right. Shouldn't the Second Amendment, which originally was requested by more states than the First Amendment was, receive at least equal treatment?
Much of the brief -- the vast majority, in fact -- reads more like a history textbook than appellate writing. Gura and his co-counsel use that space to recount, in exhaustive detail, how the post-Civil War measure called the Fourteenth Amendment was designed to protect anyone's fundamental rights from being infringed by state governments. Their argument, which I wrote about last month, traces the Fourteenth Amendment's "privileges or immunities" concept through American history and offers contemporaneous evidence that it protects gun rights against infringements by states and municipalities.
Some background: the Second Amendment, of course, says that Americans' right to "keep and bear arms" shall not be infringed. Last year's decision in D.C. v. Heller applied that prohibition only to the federal government and federal enclaves like Washington, D.C., but left open the question of "incorporation" -- that is, what state laws were permissible or not.
As a result, in the wake of Heller, anti-gun court decisions have proliferated. There's the Maryland appeals court that concluded residents enjoy no constitutional gun rights (Maryland's constitution is silent on the topic), a similar New Jersey ruling, and another one from Illinois.
Because the Supreme Court already has specified that the Second Amendment protects an individual right, the current case will center on the original meaning of the Fourteenth Amendment. Stephen Halbrook, a lawyer and historian who has written a book titled Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, has reviewed the debate in the U.S. Congress over extending the right to bear arms to the newly-freed slaves after the Civil War. He concludes: "The framers of that amendment understood from hard experience that the rights to personal security and personal liberty are inseparable from the rights to self defense and to keep and bear arms."
At some level, gun rights are like abortion rights: Every justice likely has an opinion on the Second Amendment, meaning attorneys for the city of Chicago and the Second Amendment Foundation won't be persuading as much as offering arguments that members of the court can adopt as their own. (Justice Sonia Sotomayor appears to hold the same not-very-gun-friendly position as David Souter, whom she replaced.)
Neither side expects a revolutionary outcome. Laws barring felons and the mentally ill from owning firearms will stay on the books. The majority opinion won't emphasize a constitutional right to manufacture or purchase fully-automatic weapons.
But those are examples on the extremes, and many state and local ordinances target law-abiding gun owners planning to buy something less powerful than, say, a Solothurn S-18/1000 anti-tank gun. Which laws will stand, and which won't? Assuming that the justices agree that the Second Amendment applies to states, the most important sentence from the opinion will be the one instructing lower courts on where, exactly, to draw the line.
http://www.cbsnews.com/blogs/2009/11/17/taking_liberties/entry5684166.shtml
November 17, 2009 1:08 PM
Second Amendment Protects All Americans, Supreme Court Told
Posted by Declan McCullagh
(WCBS)
Gun rights advocates have sketched out arguments they hope will convince the U.S. Supreme Court that no state can be a Second Amendment-free zone.
In a 73-page legal brief filed on Monday, the groups representing four Chicago residents asked the Supreme Court to overturn the city's extremely restrictive firearms laws, some of the most severe in the nation.
"It is unfathomable that the states are constitutionally limited in their regulation of medical decisions or intimate relations, because these matters touch upon personal autonomy, but are unrestrained in their ability to trample upon the enumerated right to arms designed to enable self-preservation," says the brief, written by attorneys Alan Gura of Alexandria, Va. and David Sigale of Lisle, Ill. on behalf of the Second Amendment Foundation.
Translation: Even though abortion is not mentioned anywhere in the U.S. Constitution, courts have nevertheless declared it to be a fundamental right. Shouldn't the Second Amendment, which originally was requested by more states than the First Amendment was, receive at least equal treatment?
Much of the brief -- the vast majority, in fact -- reads more like a history textbook than appellate writing. Gura and his co-counsel use that space to recount, in exhaustive detail, how the post-Civil War measure called the Fourteenth Amendment was designed to protect anyone's fundamental rights from being infringed by state governments. Their argument, which I wrote about last month, traces the Fourteenth Amendment's "privileges or immunities" concept through American history and offers contemporaneous evidence that it protects gun rights against infringements by states and municipalities.
Some background: the Second Amendment, of course, says that Americans' right to "keep and bear arms" shall not be infringed. Last year's decision in D.C. v. Heller applied that prohibition only to the federal government and federal enclaves like Washington, D.C., but left open the question of "incorporation" -- that is, what state laws were permissible or not.
As a result, in the wake of Heller, anti-gun court decisions have proliferated. There's the Maryland appeals court that concluded residents enjoy no constitutional gun rights (Maryland's constitution is silent on the topic), a similar New Jersey ruling, and another one from Illinois.
Because the Supreme Court already has specified that the Second Amendment protects an individual right, the current case will center on the original meaning of the Fourteenth Amendment. Stephen Halbrook, a lawyer and historian who has written a book titled Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, has reviewed the debate in the U.S. Congress over extending the right to bear arms to the newly-freed slaves after the Civil War. He concludes: "The framers of that amendment understood from hard experience that the rights to personal security and personal liberty are inseparable from the rights to self defense and to keep and bear arms."
At some level, gun rights are like abortion rights: Every justice likely has an opinion on the Second Amendment, meaning attorneys for the city of Chicago and the Second Amendment Foundation won't be persuading as much as offering arguments that members of the court can adopt as their own. (Justice Sonia Sotomayor appears to hold the same not-very-gun-friendly position as David Souter, whom she replaced.)
Neither side expects a revolutionary outcome. Laws barring felons and the mentally ill from owning firearms will stay on the books. The majority opinion won't emphasize a constitutional right to manufacture or purchase fully-automatic weapons.
But those are examples on the extremes, and many state and local ordinances target law-abiding gun owners planning to buy something less powerful than, say, a Solothurn S-18/1000 anti-tank gun. Which laws will stand, and which won't? Assuming that the justices agree that the Second Amendment applies to states, the most important sentence from the opinion will be the one instructing lower courts on where, exactly, to draw the line.
Garys
NES Member
There are actually two tracks being pursued. The case going to SCOTUS was originally filed by the Second Amendment Foundation. A similar case filed by the NRA was combined with this one. The NRA chose to pursue "Due Process", while the SAF pursued "Privileges and Immunities". The NRA is included in the case and it's brief is filed as a respondent in support of the petitioner.
http://volokh.com/2009/11/17/nra-brief-in-mcdonald-v-chicago/
That this reached SCOTUS in such a short period of time gives me some encouragement. Seems someone wants this to be decided before Obama has a chance to replace more justices.
I'm just baffled that something so clearly written in The Constitution is up for debate.
Yes, there need to be certain "reasonable" restrictions (felons, mentally ill), but not to the level many states (ahem, Massachusetts) restrict legal firearms ownership.
Maybe I'm a little off here, but my basic belief in regards to Constitutional law was that the states are allowed to pass any laws as long as they do not violate the rights of the people as enumerated in The Constitution.
I'm guessing my belief is wishful thinking.
Yes, there need to be certain "reasonable" restrictions (felons, mentally ill), but not to the level many states (ahem, Massachusetts) restrict legal firearms ownership.
Maybe I'm a little off here, but my basic belief in regards to Constitutional law was that the states are allowed to pass any laws as long as they do not violate the rights of the people as enumerated in The Constitution.
I'm guessing my belief is wishful thinking.
- Joined
- May 17, 2008
- Messages
- 16,975
- Likes
- 2,820
The whole point of these law suits to begin with. And why they are going after P&I in this lawsuit. If they can get the SCOTUS to clean up that mess once and for all, a lot of really broken crap gets fixed.
Garys
NES Member
Then, what would the lawyers do for a living? Seriously, it's not that the Constitution is unclear, it's that so many people want to obscure it's clear language to advance their political agenda.
I agree. There should be reasonable restrictions, but not a lot of restrictions. Which is why I'm in favor of shall issue licensing. Others say that even that is to restrictive and think that there should be no licensing.
A terraformer says, that's what this suit is about. The Second Amendment should be incorporated to apply to the states as well as the others that already are. If the decision is favorable to the petitioner (McDonald) then we'll see many states have to change their laws, especially those that currently allow NO concealed carry of firearms, such as Illinois. Which of course, is why that state was chosen as the battle ground for this issue.
To be perfectly honest, I think it could have been written more clearly. Simply eliminating the part about militias would have removed a lot of ambiguity and taken away the whole "collective right" argument from the antis. I realize that the first clause in the 2A should be interpreted as a (one) reason that the operative clause defines an individual right. However, a clearer wording would have stated "A well regulated Militia and the right to self defense, being necessary to the security of a free State, the right of individuals to keep and bear arms shall not be infringed."
Maybe I'm being arrogant but I think the founding fathers screwed up a bit in their choice of words on that one.
Well, we did fight a war over state's rights and their ability to override federal laws. Some people, even gun owners, think they should still be able to. At a fundamental level, incorporation is incompatible with state's rights.
Personally, I would prefer that, at least the original, Bill of Rights was fully incorporated against the states. I also agree with the reasonable restrictions you enumerated in your post.
Well, that, and previous generations of americans screwed up by not pushing the issue many many many years ago. There would be no 2nd amendment battles if there was lots of really old court precedent on it going back to the founding of the nation. It would have been a lot harder to argue against 200+ years of case law or precedent.... Instead we ended up with a handful of crappy cases, like US v Miller. Problem is most did not feel their rights getting threatened until it was (relatively) too late. Also didn't help that gun controls were often engineered to be transparent to most... eg, fill out a yellow or white form, plonk down a drivers license, and get a gun if you're not a criminal. Most view that as "acceptable". Take that same group of people and then give them a book to read on federal gun law and make them take a test on it.. I guarantee you a lot of people after being forced through that exercise, would not feel the same way. The way the system is now, people only ever see the REALLY ugly side of the system if they get in trouble (or they bother to look into it on their own).
I prefer the jail/state funny farm = no rights and free = full rights concept. What we have now is a hodgepodge of crap... although it would be a lot more "fair" if loss of rights was subjected to a separate exercise of due process under the law.... as it is now, it's just a chain of pain attached automatically to criminal offenses, restraining orders (which don't require full due process, btw) and other crap.
-Mike
Last edited:
Here's what the MA constitution says:
So, the legislature has the power to regulate our ability to keep and bear arms and that right is subordinate to the government.
I don't see how the wording of the 2A reflects the ideas set forth in the MA constitution. In fact, so far as I can tell, the MA legislature (as sucky as they are) is doing exactly what our constitution allows them to do.
Our rights as enumerated within The Constitution are rights we are born with, the states can pass no laws that restrict those rights, that doesn't violate the 10th amendment since it's not imposing laws on the states, just telling them not to create laws that violate those rights.
The 10th amendment was written more in the context of preventing the centralized power of the federal government from forcing it's will on the states in the form of laws.
States are allowed to govern themselves as their people see fit, but can not write laws that violate their civil rights.
So I actually see state's rights vs. Constitutional rights as separate in that regard.
I beg to differ. The rights identified and enumerated in the BoR (which was NOT to the exclusion of others) are INHERENT; i.e., "natural" rights. If the Federal government cannot lawfully transgress upon them, under what possible precept can a mere state? A state which inherently subordinated its scope of authority when it ratified the Constitution AND the BoR?
Which is, of course, the intent of the authors of the 14th Amendment and the legislators who enacted it.
Is this your first post upon your return? If so, I have to give you a ![[rolleyes]](/xen/styles/default/xenforo/smilies.vb/042.gif "Roll Eyes [rolleyes]")
for old times sake.
Yes, I realize that the BoR was considered an enumeration of natural rights. However, I was just stating the state's rights argument as an interpretation that has been put out there pretty much throughout the history of the country. By saying "mere state", I have to interpret that as meaning states are and always have been considered as subordinate to the federal government. That has not always been the case as considered by many people (like the south for instance).
As I said, I'm just pointing out that stance. I'm not saying I agree with it.
for old times sake.Yes, I realize that the BoR was considered an enumeration of natural rights. However, I was just stating the state's rights argument as an interpretation that has been put out there pretty much throughout the history of the country. By saying "mere state", I have to interpret that as meaning states are and always have been considered as subordinate to the federal government. That has not always been the case as considered by many people (like the south for instance).
As I said, I'm just pointing out that stance. I'm not saying I agree with it.
Understood. The states do still have rights - or DID, until they whored themselves out to get Federal subsidies.
However, the creation of the Federal government inherently required the abandonment of what had been state rights because the states were no longer sovereign. They no longer have the right to create their own currency, effect foreign policy, levy import/export duties; neither can they impede interstate commerce.
What the South's ultimate - and correct - argument was and is can be simply stated: The states entered into a contract and retain(ed) the right to withdraw from it.
I challenge anyone to find anything in the Constitution which holds otherwise.
Um, yes, they are the natural born rights of all people, well, at least the founders said so, and since they wrote that lovely little document I'm going to side with them.
Garys
NES Member
Only it would seem that as originally written and ratified, the Bill of Right applied to the federal government as a restraint against it's imposing unreasonable restrictions on the states, not necessarily the individual citizens of those states. If that were not the case, then why is there even a question of incorporation of the BoR applying to the states?
Which is an argument that some anti 2A forces use to argue that the amendment is a constraint on the federal government restricting it from disarming the state run militia forces, while at the same time not barring the states from imposing those restrictions on it's individual citizens.
Which, by this line of reasoning means that the First Amendment prevents the federal government from acting against individuals, but the Second is a collective right.
Not that I buy that, but it's certainly a plausible argument.
Says who? I'm with grant, in favor of the free=unrestricted rights, in jail/mental institution=restricted rights. Anything else is just wishful thinking on the part of people coming up with these laws. If you're out breathing the free air you can get a gun if you want, guaranteed.
Garys
NES Member
I think it might be more accurate to say that their sovereignity became limited. They certainly gave up their control of just about anything that would effect other states or the federal government. OTOH, they did retain control of many other aspects of the every day life of their citizens.
Unlike Canada, where the provinces are generally mere political subdivisions of the federal government. Hence states versus provinces.
I do agree that the states sold what would be their souls for money from the federal government. Then again, the imposition of a national income tax made that inevitable.
Sorry, I have an issue with some one who just got out of the klink on a violent felony charge owning a fire arm legally.
Bill Nance
Banned
I have an issue with a guy who gets out of jail for a violent felony in just a couple of years. If they had reasonable sentencing and no parole it wouldn't be an issue.
If someone robs me I have no problem restoring full rights after he's served a long prison sentence. If he does it again throw away the key.
I don't believe we should have 2 classes of citizens. If you're safe enough to be out on the streets you're safe enough to be entrusted with the right of self defense. If you're too dangerous to be trusted with a gun you're too dangerous to be allowed out on the streets.
If you can't trust someone with a firearm, can you trust them with a sword? knife? car? gasoline?
If you cannot trust someone to not attack people, then why let them out?
The problem of re-offense is not solved by restricting firearms at all, whats the point?
Defending myself and those around me is common defense, and 'a right'.
The part is blue is in regards to a standing army, not civilians.
