McDonald v. Chicago

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Supreme Court Remains Divided Over Gun Control
(By ADAM LIPTAK, The New York Times, March 2, 2010)

WASHINGTON " An unusually intense Supreme Court argument Tuesday showed that the justices remain bitterly divided about the meaning and scope of the Second Amendment. And it suggested that the five-justice majority in the 2008 decision that first identified an individual right to keep and bear arms was prepared to take another major step in subjecting gun control laws to constitutional scrutiny.

The case the justices considered Tuesday was a sequel to the blockbuster 2008 decision, District of Columbia v. Heller.

The Heller case placed limits on what the federal government could do to regulate guns, and the issue before the court now was whether the Second Amendment applies to state and local laws as well. It seemed plain that at least the five justices in the Heller majority would say yes without reservation.

But the two justices who wrote dissents in Heller, Justices John Paul Stevens and Stephen G. Breyer, peppered the lawyers with questions about how the court might apply the Second Amendment to the states in only a limited way.

Justice Breyer asked Alan Gura, a lawyer for residents of Chicago challenging its strict gun control law, whether the city should remain free to ban guns if it could show that hundreds of lives would be saved. Mr. Gura said no.

Justice Antonin Scalia, who wrote the majority decision in Heller, objected to the inquiry. A constitutional right, he said, cannot be overcome because it may have negative consequences.

But Justice Scalia was less receptive to an idea that has excited constitutional scholars in recent months.

“What you argue,” he told Mr. Gura, “is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence.”

Justice Scalia was referring to Mr. Gura’s assertion that the court has been going about making parts of the Bill of Rights applicable to the states in the wrong way.

The Second Amendment, like the rest of the Bill of Rights, was originally a restriction on only the power of the federal government. The Supreme Court later ruled that most but not all of the protections of the Bill of Rights apply to the states under the due process clause of the 14th Amendment, one of the post-Civil War amendments.

Many judges and scholars, including Justice Scalia, have never found that methodology intellectually satisfactory. “Due process,” after all, would seem to protect only fair procedures and not substance. The very name given to the methodology " substantive due process " sounds like an oxymoron.

Mr. Gura, supported by scholars all along the political spectrum, argued that the court should instead rely on the 14th Amendment’s “privileges or immunities” clause, which says that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” There is evidence that the authors of the clause specifically wanted it to apply to allow freed slaves to have guns to defend themselves.

Justice Scalia was unimpressed. He said Mr. Gura should focus on winning his case rather than remaking constitutional law.

“Why do you want to undertake that burden,” Justice Scalia said, “instead of just arguing substantive due process, which as much as I think it’s wrong, even I have acquiesced in it?”

Unless, that is, the justice added, Mr. Gura was “bucking for a place on some law school faculty.”

Justice Ruth Bader Ginsburg asked questions seeking to elicit where Mr. Gura’s new path would lead, and she did not appear to receive responses that satisfied her. The problem was compounded when Mr. Gura misunderstood Justice Ginsburg’s assertion that much of the population was without important rights when the 14th Amendment was adopted.

Mr. Gura thought she was referring to blacks in the South, but she was referring to women.

The Second Amendment says, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” (Some transcriptions omit the last comma.)

Justice Breyer, drawing on the first clause of the amendment, said that a right tied to state militias might be worthy of protection, while the right to bear arms “to shoot burglars” might not be. Justice Stevens, on the other hand, proposed a right limited to keeping a gun for protection against intruders into the home.

James A. Feldman, a lawyer for Chicago in the case, McDonald v. Chicago, No. 08-1521, urged the justices to treat the Second Amendment differently from its cousins because it concerns a lethal product. “Firearms, unlike anything else that is the subject of a provision of the Bill of Rights, are designed to injure and kill,” he said.

Now it was the chief justice’s turn to give advice to the lawyer before him.

“All the arguments you make against” applying the Second Amendment to the states, Chief Justice Roberts said, “it seems to me are arguments you should make in favor of regulation under the Second Amendment. We haven’t said anything about what the content of the Second Amendment is beyond what was said in Heller.”

Heller struck down parts of the District of Columbia’s gun control law, the strictest in the nation. It went on to suggest that all sorts of restrictions on gun ownership might pass Second Amendment muster, including ones concerning, in Justice Scalia’s words, “the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

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A pdf copy of the transcript from today's oral arguments:

http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-1521.pdf

2 Replies

The American Bar Association has a page with all the Briefs filed in the case.

http://www.abanet.org/publiced/preview/briefs/feb2010.shtml#mcdonald

Interesting reading from both sides of the issue.

0 Replies

Anthony Ray wrote:

"The police, urge people, to keep their guns locked up and unloaded"
"Congress today, seems on the verge of approving gun control"

[Verse One: Sir Mix-A-Lot]
It's, time to fight back cause the new jack black macks
ain't did **** about that, whack, jackin
And I'm packin
Cause I'm down for the bank I'm stackin
And in a straight up brawl I'll mall alla y'all
Ya try to crawl for Tylenol and I install
big fists in your face, the blow is well placed
Spray 'em with mace in case mace is his taste
Throw up the dogs, the competition is fogged
Cause he was smokin the yang, iced and drink the 8-ball
Drunk, stumblin, threw him with the lean
I sweep him, then attack the spleen
Play the congas on his backbone
He's funk baritone until I twisted his dome
Creep up on my house and try to roll me up?
And got STUCK IN THE GUT with a black, glock
And he starts to wobble
Self-defense is what I'm claimin, let's squabble
I pick up a pipe to take plenty of quick swipes
One grazed his dome and sliced his eye whites
I don't give a DAMN bout a stupid ass burgular
It's all circular
The dope dealer sells dope to the dope smoker
The smoker breaks in and tries to choke ya
But I ain't the one to run from ya son
This is MY HOUSE, and it's FULLA GUNS!
I'm down for mine and my choke is nice and hard
When you jack the boss there ain't no holds barred!

No holds barred
No holds barred
No holds barred

[Verse Two: Sir Mix-A-Lot]
I'm crushin most hoods like Katie-dids(?)
I'm pleadin guilty for the damage I did
This ain't about random violence
The punk crept into my house, **** SILENCE
Now most punks wanna run for the stun gun
**** a stun gun, I got the big one
Forty-four mag, automatic, CHROME
Mercury-tipped bullets, melt the dome
It's the 1990's, and crack is
talkin to the criminals, ever so subliminal
Some crackhead wants Mix-A-Lot dead
A jack move instead, another fool bled
I can't cry cause my tears are nearly froze
My interior's cold, it posess my soul
I'm on the paranoid tip
And each of my socks got a clip!
When my house got robbed, a top notch job
Cops laughed while my mom just sobbed
9-1-1 only works for the rich ones
So I collect GUNS!
So step right through if you're down for the wrong move
Most crews are moved by my twelve gauge BOOM!
How can I love when I gotta
protect my neck from a punk suspect?
Gun control - I ain't wit it
They banned the AK and any fool can STILL get it
The innocent have been beaten, bruised and scarred
But for this citizen, there ain't no holds barred

"It is an absolute infringement on my second amendment rights"
No holds barred
"When is this attack on gun owners going to end?"
No holds barred
"Education, versus restriction"

[Verse Three: Sir Mix-A-Lot]
Hypothetical situation
Gun control starts sweepin the nation
Now you got a bunch of unarmed innocent victims
Gettin FUCKED by the system
Sittin at home with a butter knife, huh
Any fool could rape your wife
So what's up when the criminals can't be stopped?
The only one with guns are the COPS
But it's hard for a brother to trust police
Huh, so the **** don't cease
So I go downtown to buy a hot gun
I hated criminals, and now I'm one
Because I bought a gat to protect my house
The cops wanna bust me out?
So it's illegal to protect yourself?
Hell, you either get killed, or you in jail
So when you vote
You better think about what I just wrote
And **** writin a note to yo' Congressman!
You got the fool hired
Now help get the fool fired
A scary scenario
And I put it in your stereo
So when a fool tries to run up on my car
R.I.P., no holds barred

No holds barred

No holds barred

"They take aim, at the law abiding citizen, instead of the criminal"
{*applause*]

Theoretically; you can listen to this classic by clicking here

0 Replies

@wandeljw,

Thanks for the link - only one hour, one page per minute! I found this passage (halfway down your text) fascinating:

Quote:

CHIEF
JUSTICE ROBERTS: I don't see how you can read -- I don't see how you can read Heller and not take away from it the notion that the Second Amendment, whether you want to label it fundamental or not, was extremely important to the framers in their view of what liberty meant.

I hope the city of Chicago gets squashed in the final decision - their lawyer Feldman certainly floundered during today's argument.

1 Reply

@High Seas,

Wouldn't a decision against the City of Chicago erode the independent police powers of all American cities and states?

5 Replies

@wandeljw,

That seems to depend on the grounds on which the decision is arrived at, if today's WSJ legal commentary is right:

Quote:

The Supreme Court seemed likely to rule for the first time that gun possession is fundamental to American freedom, a move that would give federal judges power to strike down state and local weapons laws for infringing on Second Amendment rights.

http://online.wsj.com/article/SB10001424052748704548604575097560651300490.html?mod=WSJ_hpp_MIDDLENexttoWhatsNewsThird

0 Replies

@wandeljw,

wandeljw wrote:

Wouldn't a decision against the City of Chicago erode the independent police powers of all American cities and states?

Does the law give the cities and states the power to violate the Constitution?

1 Reply

@Brandon9000,

You would be obliged to show that there were a violation of the constitution in the exercise of police powers by cities and states. Although certainly this Court can decide the states do not have this power, it is not to be axiomatically assumed that this is a violation of the constitution by the states. In United States versus Cruikshank (1878) and Presser versus Illinois (1888), the Court held that the second amendment binds the national government, but not the states. This was re-affirmed in Unied States versus Miller (1939). Therefore, for this Court to state that the amendment binds the states would be a significant break with precedent.

But as for the more insidious implication of your question, i refer you to the ninth and tenth amendments to the constitution:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

. . . and . . .

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

3 Replies

@Setanta,

Seems to me (not a legal eagle by a long shot, I hasten to add) that the argument is a subtler one: what is an individual right and what is a right of the state - whether the rights are enumerated or they lie somewhere in those "penumbras and emanations'. That said very tentatively....

1 Reply

Unless and until this Court decides otherwise, Cruikshank, Presser and Miller have all stated or affirmed that the second amendment binds the national government and not the states.

0 Replies

@Setanta,

Setanta wrote:

...But as for the more insidious implication of your question, i refer you to the ninth and tenth amendments to the constitution:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Not applicable, since I am referring to a right specifically granted to the people, which a local government is violating.

Setanta wrote:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The question is whether a local government has the power to violate a right specifically granted by the Constitution to the people.

The only relevant question is whether state and local governments have to obey the Bill of Rights. If they do not, then a state or local government can lock someone up for saying that a public official should be voted out, since free speech is a right granted by the First Amendment. Personally, I hope that the Bill of Rights binds everyone.

1 Reply

@wandeljw,

wandeljw wrote:

Wouldn't a decision against the City of Chicago erode the independent police powers of all American cities and states?

Sure it would. Every individual right in the constitution erodes the power a state can exercise over its citizens through the police. But that's not necessarily an argument against enforcing the right against the state.

0 Replies

@Brandon9000,

Your understanding is very shallow. The rights enumerated in the "bill of rights" have only gradually been applied to the states through a process known as incorporation, and that was on the basis of the due process provisions of the fourteenth amendment. If a state allows self-incrimination, it has denied the citizen due process under the provision of the fourteenth amendment, in that the constitution guarantees (in the fifth amendment) immunity from self-incrimination. As a result of the implications of the fourteenth amendment, most states amended their constitutions, or wrote new constitutions in the latter part of the 19th century, and guaranteed most of the due process rights of the early amendments in those amendments or new constitutions. This is not necessarily the case with the second amendment, which does not deal with due process.

Now, as i've pointed out, this Court may come to a different conclusion. Nevertheless, earlier Courts have found that the states are not bound by the second amendment. So your claim that local government is violating a right is, in this case, only notional, unless and until this Court comes to that conclusion.

3 Replies

@wandeljw,

The court will, most likely, rule in favor of incorporating the second amendment into the fourteenth amendment through the due process clause -- no doubt along the same lines as in the 5-4 Heller decision (with Sotomayor taking Souter's place in the minority). And just like in Heller, the majority in McDonald will issue a decision saying that the right to bear arms is a fundamental individual right, but that the states will still have the authority to control that right through "rational and limited" gun laws. The contours of that state authority will be left for later cases, which means that the court will spend the next decade refining the limits of McDonald, in the same way that the court spent much of the 1960s and '70s defining the states' authority to control pornography.

On a related note, I was listening to NPR's Morning Edition yesterday when the NRA's lawyer in this case, Paul Clement, was attempting to counter arguments by the anti-gun crowd, who contend that the case would allow citizens to own any kind of weapon. Here's how NPR reported it:

Quote:

Clement of the NRA says a bazooka is probably not even an arm "for purposes of the Second Amendment." But, he concedes, "A machine gun is a more difficult question."

So it seems that the NRA is on the same page with Samuel Alito, who apparently is also in the pro-machine gun camp. I can just see the bumper sticker slogan now: "Handguns Yes! Bazookas No! Machine Guns ... well, that's a grey area!"

2 Replies

@Setanta,

Setanta wrote:

As a result of the implications of the fourteenth amendment, most states amended their constitutions, or wrote new constitutions in the latter part of the 19th century, and guaranteed most of the due process rights of the early amendments in those amendments or new constitutions. This is not necessarily the case with the second amendment, which does not deal with due process.

Although I realize that you hedged your statement with the word "necessarily", I don't think you're correct on this point. Eugene Volokh, a law professor at UCLA, maintains a list of Gun Rights clauses in state constitutions.

http://www.law.ucla.edu/volokh/beararms/statedat.htm

I see a lot of post-1865 provisions there that do guarantee gun rights to citizens. How would this list look differently if what you said was wrong?

0 Replies

You're erecting a straw man. I have not said that the states do not guarantee gun rights to their citizens.

EDIT: I see what you failed to understand. My remark about this not necessarily applying to the second amendment was with reference to the concept of incorporation.

0 Replies

@Setanta,

Setanta wrote:

Your understanding is very shallow. ...

Brandon's understanding isn't shallow - but it may be overreach. Read the last paragraph of the transcript Wandel linked for us:

Quote:

CHIEF
JUSTICE ROBERTS: Privileges and immunities give you a lot more flexibility than due process, because it is not limited to procedural -where you don't have to deal with the hurdle that it's limited to procedural by the text.
MR. GURA: Sure. If I may?
CHIEF JUSTICE ROBERTS: Yes, you may.
MR. GURA: We believe that it's more limited because that -- that text had a specific understanding and that there are guideposts left behind in texts and history that tell us how to apply it, unlike the due process. But at least we know one thing, which is that in 1868 the right to keep and bear arms was understood to be a privilege or immunity of citizenship, and if the Court is considering watering down the Second Amendment perhaps it should look to text and history.
CHIEF JUSTICE ROBERTS: Thank you, counsel.
MR. GURA: Thanks.
CHIEF JUSTICE ROBERTS: The case is submitted.

The subtext of this "text and history" must include at least the Slaughterhouse Cases as well as the fact that plaintiff McDonald is a black man.

0 Replies

@Setanta,

Setanta wrote:

Your understanding is very shallow.

So rude... and comical before this:

Setanta wrote:

If a state allows self-incrimination, it has denied the citizen due process under the provision of the fourteenth amendment, in that the constitution guarantees (in the fifth amendment) immunity from self-incrimination.

Every State in the Union allows self-incrimination (depends on it in large part, in fact), and this violates no constitutional right whatsoever. The constitution merely guarantees the individual the right to not self-incriminate.

In my opinion; your Case Law cites are no more compelling than those who cited Pace v. Alabama before Loving v. Alabama (which struck down the State's Right to outlaw interracial marriage), or Plessy v. Ferguson before Brown v. Board of Education et al (b'bye "separate but equal")... the latter serving as something of a catalyst of realization that Federally Guaranteed Rights mean little if the States can trample them at will.

0 Replies

I disagree. I said that Brandon's understanding is shallow because it appears to me that he doesn't understand the concept of incorporation. Nothing you have written refers to his understanding of the concept of incorporation.

As far as regards the concept of incorporation with regard to the second amendment, see Joe's comment. And, as i have continually pointed out, it is up to this Court to decide whether or not this applies.

1 Reply

McDonald v. Chicago

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