Yes...
![[laugh]](/xen/styles/default/xenforo/smilies.vb/012.gif "Laugh [laugh]")
Don't wait around the computer for a ruling. Give it a few months or more...
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SCOTUS hears Chicago Case Megathread
- Thread starter Coyote Whiskey
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Don't wait around the computer for a ruling. Give it a few months or more...
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I believe they have until either August or October to decide this so many months, especially if it is not due process.
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Journal has an article....
http://online.wsj.com/article/SB10001424052748704548604575097560651300490.html
Most things I've read say to expect a decision in June
http://online.wsj.com/article/SB10001424052748704548604575097560651300490.html
Most things I've read say to expect a decision in June
LA Times Article:
Justices signal they're ready to make gun ownership a national right
A high court majority reviewing a handgun ban in Chicago indicates that it sees the right to 'bear arms' as national in scope, and can be used to strike down some state and local gun regulations.
Related
Guns are now permitted -- but not necessarily welcomed -- in national parks
Corporate free-speech ruling speaks of shift in Supreme Court
By David G. Savage
March 2, 2010 | 10:02 a.m.
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Reporting from Washington - Most of the Supreme Court justices who two years ago said the 2nd Amendment protects individual gun rights signaled during arguments Tuesday that they are ready to extend this right nationwide and to use it to strike down some state and local gun regulations.
Since 1982, Chicago has outlawed handguns in the city, even for law-abiding residents who sought to keep one at home. That ordinance was challenged by several city residents who said it violated their right "to keep and bear arms" under the 2nd Amendment.
The case forced the high court to confront a simple question it had never answered: Did the 2nd Amendment limit only the federal government's ability to regulate guns and state militias, or did it also give citizens a right to challenge state and local restrictions on guns?
All signs Tuesday were that five justices saw the right to "bear arms" as national in scope and not limited to laws passed in Washington.
Justice Anthony M. Kennedy described the individual right to possess a gun as being of "fundamental character," like the right to freedom of speech. "If it is not fundamental, then Heller is wrong," Kennedy said, referring to the decision two years ago that struck down the handgun ban in the District of Columbia. Kennedy was part of the 5-4 majority in that case.
Chief Justice John G. Roberts Jr. called it an "extremely important" right in the Constitution. Justices Antonin Scalia and Samuel A. Alito Jr. echoed the theme that the court had endorsed an individual, nationwide right in their decision two years ago. The fifth member of the majority, Justice Clarence Thomas, did not comment during the argument, but he had been a steady advocate of the 2nd Amendment.
A ruling striking down the Chicago handgun ban would reverberate nationwide because it would open the courthouse door to constitutional challenges to all manner of local or state gun regulations. However, the justices may not give much guidance on how far this right extends.
Roberts all but forecast the court would issue an opinion that avoids deciding the harder questions about whether guns can be carried in public as well as kept at home. "We haven't said anything about the content of the 2nd Amendment," Roberts said at one point. He added that the justices need not rule on whether there is a right to carry a "concealed" weapon.
A lawyer for Chicago argued that there is a long American tradition of permitting states and cities to set gun regulations. For 220 years, gun restrictions "have been a state and local decision," said attorney James A. Feldman. Cities should be permitted to set "reasonable regulations of firearms," he added, noting that Chicagoans are allowed to have rifles and shotguns in their homes.
But he ran into stiff questioning from Scalia and his colleagues.
At one point during the argument, Justice John Paul Stevens suggested the right to bear arms could be limited to homes. A liberal who dissented in the earlier gun-rights case two years ago, Stevens said the court could rule for the Chicago home owners and say they had a right to a gun at home. At the same time, the court could say it is not "a right to parade around the street with a gun," Stevens said.
But that idea got no traction with the other justices, and a lawyer representing the National Rifle Assn. said the court should not adopt a "watered-down version" of the 2nd Amendment.
It will be several months before the court hands down a decision in the case of McDonald vs. Chicago.
[email protected]
Copyright © 2010, The Los Angeles Times
Justices signal they're ready to make gun ownership a national right
A high court majority reviewing a handgun ban in Chicago indicates that it sees the right to 'bear arms' as national in scope, and can be used to strike down some state and local gun regulations.
Related
Guns are now permitted -- but not necessarily welcomed -- in national parks
Corporate free-speech ruling speaks of shift in Supreme Court
By David G. Savage
March 2, 2010 | 10:02 a.m.
E-mail Print Share Text Size
Reporting from Washington - Most of the Supreme Court justices who two years ago said the 2nd Amendment protects individual gun rights signaled during arguments Tuesday that they are ready to extend this right nationwide and to use it to strike down some state and local gun regulations.
Since 1982, Chicago has outlawed handguns in the city, even for law-abiding residents who sought to keep one at home. That ordinance was challenged by several city residents who said it violated their right "to keep and bear arms" under the 2nd Amendment.
The case forced the high court to confront a simple question it had never answered: Did the 2nd Amendment limit only the federal government's ability to regulate guns and state militias, or did it also give citizens a right to challenge state and local restrictions on guns?
All signs Tuesday were that five justices saw the right to "bear arms" as national in scope and not limited to laws passed in Washington.
Justice Anthony M. Kennedy described the individual right to possess a gun as being of "fundamental character," like the right to freedom of speech. "If it is not fundamental, then Heller is wrong," Kennedy said, referring to the decision two years ago that struck down the handgun ban in the District of Columbia. Kennedy was part of the 5-4 majority in that case.
Chief Justice John G. Roberts Jr. called it an "extremely important" right in the Constitution. Justices Antonin Scalia and Samuel A. Alito Jr. echoed the theme that the court had endorsed an individual, nationwide right in their decision two years ago. The fifth member of the majority, Justice Clarence Thomas, did not comment during the argument, but he had been a steady advocate of the 2nd Amendment.
A ruling striking down the Chicago handgun ban would reverberate nationwide because it would open the courthouse door to constitutional challenges to all manner of local or state gun regulations. However, the justices may not give much guidance on how far this right extends.
Roberts all but forecast the court would issue an opinion that avoids deciding the harder questions about whether guns can be carried in public as well as kept at home. "We haven't said anything about the content of the 2nd Amendment," Roberts said at one point. He added that the justices need not rule on whether there is a right to carry a "concealed" weapon.
A lawyer for Chicago argued that there is a long American tradition of permitting states and cities to set gun regulations. For 220 years, gun restrictions "have been a state and local decision," said attorney James A. Feldman. Cities should be permitted to set "reasonable regulations of firearms," he added, noting that Chicagoans are allowed to have rifles and shotguns in their homes.
But he ran into stiff questioning from Scalia and his colleagues.
At one point during the argument, Justice John Paul Stevens suggested the right to bear arms could be limited to homes. A liberal who dissented in the earlier gun-rights case two years ago, Stevens said the court could rule for the Chicago home owners and say they had a right to a gun at home. At the same time, the court could say it is not "a right to parade around the street with a gun," Stevens said.
But that idea got no traction with the other justices, and a lawyer representing the National Rifle Assn. said the court should not adopt a "watered-down version" of the 2nd Amendment.
It will be several months before the court hands down a decision in the case of McDonald vs. Chicago.
[email protected]
Copyright © 2010, The Los Angeles Times
In that line, I think Clement picks up on this and develops this interesting argument for incorporation under Due Process that might be enticing to the "easy-way" deciders. From pp. 22-23 of the transcript:
Just to dwell for a moment if I'd could on the First and Second Amendment, I think it's striking, very striking, that if this Court's not going to reconsider its Privileges or Immunities Clause jurisprudence, the Cruikshank case actually stands as very good precedent for incorporating the Second Amendment, just as it was the precedent this Court relied on in incorporating the assembly and petition rights of the First Amendment in the DeJonge case. And the reason is Cruikshank -- the whole reason that Cruikshank said the First and Second Amendments aren't privileges of national citizenship is because they were preexisting rights that didn't depend on the Constitution for their existence.
That seems to me to be a pretty good working definition of what a fundamental right is, one that is so fundamental and basic that it preexisted our very Constitution. And so it's not surprising that DeJonge cited Cruikshank as favorable precedent for incorporation.
I think the exact same logic would apply to the Second Amendment here and, as I say, I do think the consequence of that, certainly the most logical consequence, would be to carry over the jurisprudence under the Second Amendment. Now, right now that's not carrying over a lot, right. That's carrying over the Heller case.
But I think in a way that points up to the fact that one of the virtues of incorporation is that, because the Miller decision of this Court sowed confusion, we do not have substantial Second Amendment jurisprudence. And I would think that it's going to be difficult enough to develop the Second Amendment jurisprudence that you wouldn't want to make it more difficult by having to develop a Federal Second Amendment jurisprudence and then some sort of shadow version of that jurisprudence for the States.
And I think in the more recent incorporation cases, this Court was quite candid that it wasn't going to adopt sort of a shadow version of the Federal guarantee or some watered down version of the Federal guarantee, but it really saw the virtue of incorporating not just the right but the jurisprudence that came with that right.
And so I do think that's in a sense something that counts in favor of incorporating the Second Amendment and doing so through the Due Process Clause, the same way this Court has dealt with the other substantive guarantees of the Bill of Rights. And I think if you apply that jurisprudence, the case really is very straightforward. In fact, I think if you compare the First Amendment and the Fourth Amendment to the Second Amendment, they have the same textual guarantee to the people, they trace their origins to preexisting rights back to the English Bill of Rights, back to even earlier constitutional history.
Can someone explain, what is the significant difference between incorporation under the Privileges or Immunities Clause and incorporation under the Due Process Clause? What is the consequence of one versus the other?
As I understood it the one Gura is arguing has precedent, the one the NRA is arguing does not. Or maybe it was the other way around? Something about Slaughterhouse something or other.
...and that is my expert legal explanation.
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I know it may not be a popular opinion, but having read the transcript over, I'm glad the NRA managed to get some argument time. As a little-L libertarian I'm sympathetic to Gura's higher-level goals, but I also didn't want to see the incorporation issue turn out the wrong way because the justices didn't like Gura's libertarian crusade. Also, in this day and age, I'm not sure I'd want "privileges or immunities" to be reinvigorated. Do that, then have a conservative quit/die and have The Empty Suit in the White House appoint some hardcore leftie, and you'll have SCOTUS ruling there's a constitutional right to welfare, health care, a minimum income, etc.
I prefer the NRA's approach here of getting the job done on getting 2A incorporated without opening the socialism door (any more than it already is).
I prefer the NRA's approach here of getting the job done on getting 2A incorporated without opening the socialism door (any more than it already is).
Other way around. Gura was asking SCOTUS to overrule The Slaughter-house Cases. NRA was asking SCOTUS to use the substantive due process doctrine that has been used to incorporate most, but not all, of the Bill of Rights against the states.
Here's the best I can do - Legal Scholars feel free to correct:
1. 14th amendment was passed in response to civil rights violations in the south during reconstruction - it said:
a. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
b. nor shall any State deprive any person of life, liberty, or property, without due process of law;
c. nor deny to any person within its jurisdiction the equal protection of the laws
2. The slaughterhouse cases then neutered the first clause saying:
Gura said:
3. So, now - without overrulling Slaughterhouse (as Gura requests), we are left with "b" and "c" - since according to those cases "a" simply does not apply...
4. If we then declare 2A an individual right (per Heller) and "incorporate" it - now "due process of law" must be applied prior to "depriving" a citizen of this right to Keep and Bear Arms.
The consequence of expanding PoI (or restoring it some would argue) is that it provides a broad and as yet undefined blanked of "privileges" and "immunities" which cannot be violated by the states. In other words, it opens a can of worms of power taken from government and returned to the people, but exactly what those powers are is not defined by any rulings of the courts, but generally speaking could readily be interpreted as saying that anything the Constitution says the Federal Government cannot do, the states are also prohibited from doing.
As it stands to day, this is very much NOT the case. The states have some leeway, which is how we get our Nanny-state MA laws.
I have from day one been of two minds about this from the perspective of state's rights. I think you are right to be concerned about that. Without the simultaneous enforcement of "enumerated powers", our Federal government run-amok could use this power for evil as easily (perhaps more easily) than good...
While PoI should give us broader civil liberties - if, as you suggest, the court or Congress decides a "ordered liberty" means everyone has a right to a house and free healthcare, you can put a fork in our Republic for good...
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There's an easy way to protect from this. The BOR doesn't define what government is supposed to do, they define that which the government can't infringe upon. Nothing in the constitution is any different. So long as the government doesn't stand in the way of a doctor providing free health care, they are not infringing on that right. Nothing in the constitution says the government must provide anything other than legal structure and due process.
I believe that's about what I said a few pages back in how Gura _should_ have responded to the question asking for a list of these "privileges and immunities"...
The trouble of course is that our politicians and sadly many of those who elect them have an incorrect view of the Constitution as "granter of rights".
We see this in MA with the AG, FRB, CLEO misreading their mandate to enforce and promulgate regulations to enforce the law as saying that they can "write" law as they see fit to accomplish that task...
If the courts were functioning, they'd stop this crap and restrict the executive to the function of executive, the legislature to the function of legislating and the courts to the interpretation of law. Instead we have CLEOs "interpreting" the law and making findings of fact (suitability) which determine your freedom.
There must be balance, or the whole thing degrades into the mess we see now - that balance must be enforced by the electorate - we have failed...
That's a pretty good summation based upon my very recent and intense study of the matter.
"b" is the safe path and Gura did not discount it. Don't be surprised if you get a 9-0 vote for due process.
You have to give Gura serious props for pushing the 'a' route. It's tough to tell based on transcript along, but I sense that the justices were the most intellectually engaged for Gura's arguments.
Gura is 100% right on one count: What we have is NOT what the framers of the 14th intended. I mean how can you read an entire clause and then continue to write it off? Gura is essentially saying "someone put it there, it was ratified, it's got to have some meaning".
I think the SC is sympathetic to this argument on the one hand, but are unwilling open the Pandora's box of giving Gura his way. Even if they agree with him, the court does not like to make the radical breaks that would go along with recognizing POI. It might be another 30+ years before another incorporation case comes along.
Nah, "the 4" can't see past their agenda which is why they were still harping on "the militia clause"...
If such a thing were legal, I'd put money against an unanimous vote...
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I agree. Legal scholars on the right, left, and center mostly agree the Slaughter-house decision is BS. But I think SCOTUS views it exactly as a Pandora's Box. I think the right worries about the left using PoI to constitutionalize social democracy (e.g. impose constitutional rights to welfare, jobs, healthcare, minimum income, etc.). I think the left worries about the right using PoI to resurrect Lochner and laissez-faire with teeth. And so they close ranks to leave Slaughter-house untouched.
I think that's a pretty straight forward train of thought, and I'm surprised it wasn't really brought up here, or in Heller. Perhaps the modern politically minded judges fear the status-quo damaging aspects of interpreting the Constitution as it was actually intended. I called into Jay Severin's show awhile back when we first started debating Obamacare and stated that if health care (or general welfare) was considered a 'right' to be provided by the government, then why isn't the government handing out free guns to every citizen? Why aren't they providing free door locks to keep our possessions secure? Why don't they provide a national platform free to use for citizens to express their 1st Amendment rights to all of the other citizens of the nation?
Any reasonable person who has even a moderate grasp on the founding of our Government should find it painfully obvious that our Federal government was not created with the intention of providing for its citizens, but with the intention of representing the states, and preserving the integrity of the states, and as such their powers were intended to be and should be limited to those functions.
Or perhaps their view is that the result of the Civil War was to drastically alter the DNA of the USA in such a way that rather than representing the states, the Federal government now subjugates the State governments?
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John Lott, author of the book, MORE GUNS LESS CRIME, is covering this exciting case on his blog: http://johnrlott.blogspot.com/ . I found it to be helpful and informative.
Supreme Court appears set to widen gun rights
The Supreme Court majority that two years ago ruled a near-total ban on handguns in the District to be unconstitutional seemed equally willing on Tuesday to extend the Second Amendment's right to keep and bear arms to the states.
But the court appeared skeptical, even hostile at times, to an approach by the lead attorney in the case that would involve overturning long-held court precedents to achieve the result.
The high court heard arguments on behalf of four Chicago residents led by homeowner Otis McDonald, the Second Amendment Foundation and the Illinois State Rifle Association to overturn Chicago's near-30-year-old handgun ban in a case expected to have far-reaching implications for state and local gun control laws.
READ MORE
The Supreme Court majority that two years ago ruled a near-total ban on handguns in the District to be unconstitutional seemed equally willing on Tuesday to extend the Second Amendment's right to keep and bear arms to the states.
But the court appeared skeptical, even hostile at times, to an approach by the lead attorney in the case that would involve overturning long-held court precedents to achieve the result.
The high court heard arguments on behalf of four Chicago residents led by homeowner Otis McDonald, the Second Amendment Foundation and the Illinois State Rifle Association to overturn Chicago's near-30-year-old handgun ban in a case expected to have far-reaching implications for state and local gun control laws.
READ MORE
KBCraig
NES Member
That's because they misunderstand "rights", and government's role. Either that, or they're terrified of giving up their role as arbiters of what is and what isn't a right.
Gura was prepared for the argument against using P&I, and whether he responded poorly by defect or by design remains to be seen. I have to believe his inner response, screaming to get out, was "WTF? You want me to list the unenumerated rights? Maybe Black's is too narrow... try Webster's and look up "oxymoron", ya moron!"
Or maybe that was just my inner response.
![[devil]](/xen/styles/default/xenforo/smilies.vb/015.gif "Devil [devil]")
Let me preface this by saying I would of loved to see P&I used to incorporate the 2A and have the SCOTUS overturn the Slaughterhouse Case, but in all honesty, there is no way that was going to happen.
The reason that it wasn't going to happen is that this case isn't a good enough case to overturn the 130 or so years or jurisprudence since the 2A can be incorporated via the Due Process clause rather easily, and allows for the narrow ruling that the SCOTUS often like to issue.
Using P&I would of brought thousands of state laws into question and opened them for legal challenges, and many would of ended up at the feet of the SCOTUS, it isn't so much a matter of laziness that they don't want to hear them as it's a matter of taking away too many state's abilities to legislate themselves and leaving the legality of many laws at the feet of the unelected SCOTUS verses the duly elected representatives of the people.
You're also then left with allowing the courts to decide what is and isn't a right, though to people like you and me it's an easy answer, you're free to preform any action that doesn't infringe on the rights of others, but then we're left with the question on defining infringe.
I could go on for pages of what the various possibilities of would happen if P&I was used for incorporation in this matter, but I think you get the idea now.
Now, if down the road another case comes along where it's not a matter of incorporation, but of other matters where P&I can be reinterpreted, then we might get a ruling that does overturn the Slaughterhouse Case, but the case would have to allow for a narrow ruling that does not open the Pandora's box legally, but can be written in a way that allows P&I to regain the strength legally it was meant to have, yet not open the door to thousands of legal challenges of existing laws.
Wow +1 Pithy and insightful commentary.
ETA: You're spot on. But I think the justices picked this case to get POI out on the table, which doesn't mean they'll actually do something about it for all the reasons you'll mentioned. Expect some interesting opinions.
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No, I feel many on the current SCOTUS would love the chance to take a second look at P&I, I just feel they didn't think this was the case since all other incorporation argument used the Due Process clause of the 14th, so to try and rule based on P&I would of been seen as legislating from the bench and is too politically treacherous right now.
In a perfect world that would be true, but we don't like there, we live in America, and we have politicians who don't take too kindly to unelected officials intruding on their own power grabs.
Exactly. Remember FDR's court-packing plan (though he wasn't able to ram it through). And remember that the Constitution gives Congress the power to determine SCOTUS's appellate jurisdiction.
http://www.ustream.tv/recorded/5140407
Interesting presentation at Georgetown Journal of Law and Public Policy regarding McDonald v Chicago. A lot of discussion about 2A incorporation via POI and refutation of the 'Pandora's Box' argument. This presentation occurred AFTER oral arguments yesterday.
Interesting presentation at Georgetown Journal of Law and Public Policy regarding McDonald v Chicago. A lot of discussion about 2A incorporation via POI and refutation of the 'Pandora's Box' argument. This presentation occurred AFTER oral arguments yesterday.
GunGrey
Banned
Today in section A4 of the republican
They had an article about the Mcdonald vs Chicago supreme court case and at the end of the article they cite Sotomayr (SP?) as saying "Would you be happy if we incorporated it and said reasonable regulation is part of the incorporation?". But what is reasonable? here in MA we have a long list of regulations/restrictions that MA has deemed reasonable, now whats to stop MA after this ruling which hopefully will be in Mcdonald's sides favor from handing out more and more regulation that they deem as being reasonable
They had an article about the Mcdonald vs Chicago supreme court case and at the end of the article they cite Sotomayr (SP?) as saying "Would you be happy if we incorporated it and said reasonable regulation is part of the incorporation?". But what is reasonable? here in MA we have a long list of regulations/restrictions that MA has deemed reasonable, now whats to stop MA after this ruling which hopefully will be in Mcdonald's sides favor from handing out more and more regulation that they deem as being reasonable
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