SCOTUS hears Chicago Case Megathread

lagrangian said:
Correct. The Bill of Rights quite intentionally did not apply to the States. Only to the Federal Government. The Reconstruction-era Republicans wanted to change that, hence the 14th Amendment.
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Unfortunately, if Heller would there still be federal gun prohibitions (e.g. federally mandated gun-free zones, barrel lengths, select-fire actions, etc.)

If I read it correctly, the Amendment ended with a Shall NOT be infringed.
 
mikem317 said:
If I read it correctly, the Amendment ended with a Shall NOT be infringed.
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And then the 5:4 majority shat on it with "reasonable restrictions"[sad2]

But, we've come a long way in 18 months back from the brink of "collective rights" and tortured "militia" arguments that defied reason and history...

American sentiment seems to be shifting too...

Frankly, I am a little surprised how rapidly the culture is shifting (as expressed by opinion polls as well as the proliferation of "shall issue CCW states").

We went to a dark place after Reagan's shooting, but we seem to be coming back - we just need to keep pushing the issue before the momentum runs out...
 
OK if this is correct and I have no actual evidence to support it, this means we do not have freedom of speech or any of the other rights that we always thought we had.

Would appreciate it if you would provide evidence to this end.


lagrangian said:
Correct. The Bill of Rights quite intentionally did not apply to the States. Only to the Federal Government. The Reconstruction-era Republicans wanted to change that, hence the 14th Amendment.
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SemiAutoSam said:
OK if this is correct and I have no actual evidence to support it, this means we do not have freedom of speech or any of the other rights that we always thought we had.

Would appreciate it if you would provide evidence to this end.
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Well, there is what the document says and what was done...

Starting first in the pre-14th amendment world
What it says is "Congress shall make no law" regarding free speech, exercise of religion etc... It says nothing about what the states do, but if you know your history, then you understand that these were viewed as natural rights and many states had them duplicated in their own state constitution...

Now in the post 14th amendment world, the state's rights scuffle that was the Civil War caused this question unanswered in the text to be answered...

IMO, after the 14th amendment was passed, no incorporation should have been required and state's rights were trumped in favor of Constitutional rights...

Now, instead of broadly accepting this post 14th amendment paradigm, the SCOTUS chose to individually incorporate the Constitutional protections. One, by, one the Federal Constitution has been affirmed to pre-empt state's rights (or if you prefer provide the protections of the Constitution to all US citizens).

Curiously, despite incorporating the 1st amendment which VERY specifically says "Congress", somehow the 2nd amendment fell through the cracks of this process when it says "shall not be infringed". It should have been MORE likely to be incorporated...

All the while this new, bizarre theory of "collective rights of the militia" began to form in the minds of the liberals... [sad2]

So, IMHO on the historical timeline, the "natural rights" were first presumed to apply to all - then the Civil War raised the question the Constitution had tap-danced around ("what if we disagree on the basic natural rights, can one state differ in its opinion of them?").

Now in the post 14th amendment world we have been moving towards an entirely federalized world with the state's rights being neutered because the population (correctly in many cases) doesn't like the abuse of power exercised by the individual states - slavery, gun control, racism, etc...

BUT, it's a more dangerous system that is concentrating all the power in the hands of the Federal government[sad2].

The right of free speech was always there - its just a question of where the restraint on government's infringement lies... They've been tossing that football around for 220+ years, but the real answer is that the restraint on government's infringement is US...

We have to stop electing asswipes who infringe and appoint Supreme Court Justices who can't read...
 
lagrangian said:
This morning the US Supreme Court granted certiorari in McDonald v. Chicago. Thus presumably by June the Court will decide if the Second Amendment applies to the States.

I predict that it will so rule, and perhaps by a surprisingly large margin. Though the liberals on the Court hate the 2A, Heller said the 2A is a fundamental right and current incorporation doctrine says fundamental rights are to be incorporated against the states. So it may well be 8-0 or 7-1 on that question (I think Sotomayor has to recuse on this case).

The real question, I think, will be what standard of scrutiny the Court adopts. The standard of scrutiny is how courts decide if a right is really being violated. If I recall correctly, Heller at least ruled out "rational basis" scrutiny which is basically "if the state can come up with pretty much any reason at all for violating the right, they're allowed to violate it".
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Why would she have to recuse? She was in the 2nd circuit, not the 7th. I think we'll see pretty much the same 5-4 split as in Heller.

jar said:
I think you meant Maloney when you said Nordyke. Maloney v Rice is the case challenging the NY nunchuku ban. Nordyke v King is the California case about gun shows at county fairgrounds.

IMO McDonald is a better case than the similar NRA v Chicago, because it challenges more provisions of the Chicago law, and it's being run by Alan Gura, who won one for the good guys already. Also, McDonald raises the issue of overruling the Slaughterhouse cases, which will attract a lot of interest and support from liberal legal scholars.
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I think the fact that it's Gura who will be arguing this is very important. It's also encouraging. He did a fine job with Heller, and didn't try to overreach. I think he has a good idea of the incrementalism necessary to achieve the desired end point. I don't like it, not at all, but I think it's the best approach.

Wrench75 said:
You would have to figure that after the way they ruled on the Heller case that we would have a decent chance of the court ruling in our favor but it seem conspicuously soon after obama's plant getting affirmed to the court...
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Sotomayor replaced a similarly liberal Justice that wouldn't support the 2A. Only she seems like a more shallow intellect, so I don't expect to see persuasive legal arguments from her in this case. Or any others, but that's a different story.
 
Garys said:
Why would she have to recuse? She was in the 2nd circuit, not the 7th. I think we'll see pretty much the same 5-4 split as in Heller.
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You're right. I couldn't remember if McDonald was the one she was involved in or not. But given that the other party is "Chicago", I should have realized/remembered right away that McDonald came out of the 7th Circuit.
 
lagrangian said:
You're right. I couldn't remember if McDonald was the one she was involved in or not. But given that the other party is "Chicago", I should have realized/remembered right away that McDonald came out of the 7th Circuit.
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I think it was "Ricci" she was involved in. In any case it was the affirmative action case out of New Haven. Which SCOTUS overturned.
 
cekim said:
Starting first in the pre-14th amendment world
What it says is "Congress shall make no law" regarding free speech, exercise of religion etc... It says nothing about what the states do, but if you know your history, then you understand that these were viewed as natural rights and many states had them duplicated in their own state constitution...
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True. On the other hand, many states well post-1789 still had established (i.e. state-supported) churches -- especially MA! :), which the First Amendment prohibited the Federal government from doing.
 
Garys said:
Do you know which one? I'd guess it was a NYC case involving Bloomberg and his law suits, but I'm drawing a blank.
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It was Maloney v. Cuomo, I think, and I believe it was one of those nunchuku (spelling?) cases. I think she cited Cruikshank and Presser as well.

EDIT: Google says I'm right, but maybe not about the Cruikshank cite.
 
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TheRoland said:
It was Maloney v. Cuomo, I think, and I believe it was one of those nunchuku (spelling?) cases. I think she cited Cruikshank and Presser as well.

EDIT: Google says I'm right, but maybe not about the Cruikshank cite.
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Is this a 2A case? Or a prohibited weapon case that might have 2A implications?
 
KMaurer said:
I think that the lists of approved firearms will either go by the boards or be substantially expanded, and so-called "consumer protection" regulations greatly weakened, because the rational for both is essentially flawed. All one has to look at to see this is the fact that they always exempt police. If a gun is unsafe or defective, there's absolutely no reason that police would want to use it. It's also hard to argue that the criteria used by most states aren't arbitrary, given the objective and well-tested standards used by SAAMI. It's a bit like arguing for your own set of "safety" criteria for automobiles that are both different from and require expensive, redundant testing over and above those done by the federal government and existing non-government testing organizations.

Ken
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Assuming a positive incorporation ruling, we just might have an excellent opportunity to challenge the states "may issue" law (at least with regard to possession and purchase).

While the justices in the majority for Heller didn't issue a binding decision on any licensing requirement, they seem to have the opinion that a licensing requirement is also prohibitive... at the very least, one that is "enforced in an arbitrary and capricious manner".

Reading in between the lines, I get the impression that the majority was a bit puzzled as to why Heller/Guara didn't oppose DCs licensing requirement, because if they had, the court would have almost certainly struck that down as well...

The Court applies as remedy that "[a]ssuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home." The Court, additionally, hinted that other remedy might be available in the form of eliminating the license requirement for carry in the home, but that no such relief had been requested: "Respondent conceded at oral argument that he does not 'have a problem with . . . licensing' and that the District's law is permissible so long as it is 'not enforced in an arbitrary and capricious manner.' Tr. of Oral Arg. 74–75. We therefore assume that petitioners' issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement."
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http://en.wikipedia.org/wiki/District_of_Columbia_v._Heller#Issues_addressed_by_the_majority
 
lagrangian said:
I think they were arguing that under Heller they have a self-defense right and were choosing to use nunchuks as their self-defense weapon.
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I worry that the 'nunchuk' case is a poor one to put before the SJC.

It would be too easy (lack of historical use of nunchuks, etc.) to have the court rule 'nunchuks' to be illegal and there would be little public outcry compared to any attempt to rule firearms illegal. There isn't a large nunchuk lobby (other than the defenders of self defense), but the battle would be too easily lost if focused on such a limited use, fringe weapon.
.
 
Titan said:
I worry that the 'nunchuk' case is a poor one to put before the SJC.

It would be too easy (lack of historical use of nunchuks, etc.) to have the court rule 'nunchuks' to be illegal and there would be little public outcry compared to any attempt to rule firearms illegal. There isn't a large nunchuk lobby (other than the defenders of self defense), but the battle would be too easily lost if focused on such a limited use, fringe weapon.
.
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Considering the fact they were outlawed soon after they arrived, they never had a chance to become in common use. They are small arms. They shouldn't be exempt from the 2A.
 
terraformer said:
Considering the fact they were outlawed soon after they arrived, they never had a chance to become in common use. They are small arms. They shouldn't be exempt from the 2A.
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I hear that phrase all the time - "common use" - this is a fabrication of the gun grabbers based on their "they intended to give us the right to bear muskets" argument...
 
cekim said:
I hear that phrase all the time - "common use" - this is a fabrication of the gun grabbers based on their "they intended to give us the right to bear muskets" argument...
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Well, guess what. That phrase was in heller (as per that abomination that was miller). Handguns were in common use. You can bet any new gun type comes out, they will ban it before it becomes in common use. Tasers. Check. Throwing stars. Check. blah blah
 
terraformer said:
Well, guess what. That phrase was in heller (as per that abomination that was miller). Handguns were in common use. You can bet any new gun type comes out, they will ban it before it becomes in common use. Tasers. Check. Throwing stars. Check. blah blah
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Too bad they can't embrace 'common sense' instead of 'common use'. It absurd to 'allow' concealed carry of handguns while prohibiting tasers, licensing mace, etc. All defensive tools should be fair game (yes, even nunchucks). I just think they're too easy an item to shoot down for the courts.

I much prefer a well drawn handgun case that strikes down all prohibitions of all defensive weapons.

.
 
terraformer said:
Well, guess what. That phrase was in heller (as per that abomination that was miller). Handguns were in common use. You can bet any new gun type comes out, they will ban it before it becomes in common use. Tasers. Check. Throwing stars. Check. blah blah
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[sad2] Why, why, why, why?

[crying] fockers....

p.s. off to go fashion ye olde semi-auto musket [rofl2]
 
lagrangian said:
SCOTUS has scheduled oral arguments for (IIRC) March 2, 2010 at 10am. I wouldn't expect a decision before the end of June. All the briefs have been filed by both sides and the amici, I believe.
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Not all...

http://www.chicagoguncase.com/case-filings

Surprisingly, both the Brady Campaign and the NAACP have filed Amici Curiae in support of neither party [shocked].

The Bradys have chosen to argue the level of scrutiny to be decided by the court (of course they are pushing for the lowest level of review), and the NAACP is urging a guarded approach for the road to incorporation (apparently they're not thrilled with going the P&I route).
 
cekim said:
I hear that phrase all the time - "common use" - this is a fabrication of the gun grabbers based on their "they intended to give us the right to bear muskets" argument...
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I've long held the belief that if the Second Amendment gives citizens a right to bear only muskets than the First Amendment only protects material printed on a printing press criticizing Her Majesty.
 

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