14
   

McDonald v. Chicago

 
 
OmSigDAVID
 
  1  
Reply Thu 4 Mar, 2010 01:31 am
@joefromchicago,
joefromchicago wrote:
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!"
[That was the criterion of MILLER: the weapon had to be of help to a militia.
Excuse me for stating the obvious. David]

I agree with your analysis of the probabilities.
If u r still IN Chicago, (rather than FROM it),
perhaps u 'll keep us up-to-date on how matters proceed
post-McDONALD decision.





David
0 Replies
 
OmSigDAVID
 
  2  
Reply Thu 4 Mar, 2010 02:10 am
@Setanta,
Setanta wrote:
Perhaps Thomas deleted his post. At all events, this is the reply to that post which i had prepared:

I am not prepared to be suppositious in that matter. My comment about the second amendment was to the effect it is not necessarily a matter for incorporation, and how the states saw that in amending or re-writing their constitutions is not relevant to that comment.

I was expressing my personal opinion that it is not a matter for incorporation.
With regard to that opinion, see Joe's most recent post.
I join in your approval of Joe 's post.
Setanta, as to your personal opinion, note that
the Supreme Court in PLANNED PARENTHOOD v. CASEY
112 S.Ct. 2791 (P. 2805) (1992)
the US Supreme Court declares that:
"...by the express provisions of the first eight amendments to the Constitution"
rights were "guaranteed to THE INDIVIDUAL...
It is a promise of the Constitution that there is a realm of personal liberty
which the government may not enter." [emphasis added by David]
The 2nd Amendment is within "the first eight amendments".

In that case, the USSC has held that:
"All fundamental rights comprised within the term liberty are protected
by the federal Constitution from invasion by the states." PARENTHOOD (supra)

In GIDEON v. WAINWRIGHT 372 US 335 (1963) the US Supreme Court held that:
"this Court has looked to the FUNDAMENTAL nature of original Bill of Rights guarantees
to decide whether the Fourteenth Amendment makes them obligatory on the States"[emphasis added by David];
hence, the 2nd Amendment forbids the states from controlling guns if the right to guns for self-defense
from the violence of man or beast is "fundamental" not trivial.

In said PARENTHOOD case, speaking of the right to reproductive autonomy,
the USSC used the following language
(in pertinent part, from perspective of the right to self-defense):

"Our law affords constitutional protection to PERSONAL DECISIONS....
Our cases recognize 'the right of the individual ... to be free from
unwarranted governmental intrusion into matters ... fundamentally
affecting a person'
... These matters involving the most intimate and
PERSONAL CHOICES a person may make in a lifetime, choices central to
PERSONAL DIGNITY and AUTONOMY, are central to the liberty protected
by the 14th Amendment." (P. 2807) [emphasis added by David]

Will u agree that the question of whether to arm oneself defensively
is a "personal decision"? Will u dissent from the notion that
personal armament, in some cases of predatory abuse,
can save the victim's personal dignity and autonomy?

I thought the USSC made the point quite eloquently
(as to the first 8 amendments).

Do u agree that this bears upon incorporation as a fundamental right?





David
0 Replies
 
Setanta
 
  1  
Reply Thu 4 Mar, 2010 04:49 am
No, i don't. The text of the second amendment makes absolutely no comment about a right of personal self-defense. Therefore, i see your argument as a self-serving interpretation intended to support a view you wish to have enshrined, rather than a justifiable interpretation based upon the text of the amendment. Until Heller, there was never an express claim that people have a right to firearms for the purpose of personal self-defense. That being said, i have little doubt that this Court, constituted as it is with so many reactionary judicial legislators, may well take this as an opportunity to extend this heretofore unknown and neither express nor implicit right of firearms for personal self-defense.

Blackstone says that people in English common law have a right to keep and bear arms, according to their condition and degree. He later acknowledges that the game laws of England effectively take that right away. St. George Tucker in his commentaries on the constitution takes note of Blackstone's commentaries, and very pointedly notes that the purpose of the second amendment, other than providing a militia, is to assure that no one shall be excluded from a right of self-defense because of his condition or degree--in the context of defending one's self from government tyrrany. I have no doubt that an attitude such as Tucker evinces will be similar to if not identical with the argument advanced by this Court.

They will no doubt lean heavily on historical context. I have a serious problem with that, though. The idea of a militia for the security of a free state would have been laughable, had it not been the occasion of so much misery in our history. The few examples in which militia performed well, in the absence of professional troops are exceptions which prove the rule that militias cannot secure a free state. Even upon many occasions when militia were to act in concert with professional troops, they proved a miserable failure. The entire War of 1812 provides a striking example of the folly of relying upon militia to defend the nation. The sole occasion upon which they behaved well was at New Orleans, and that was only the New Orleans militia on the left bank of the river, hunkered down in field fortifications and spread out among the Tennessee volunteers who were, almost to a man, veterans of the Creek War. They were also backed up by a solid body of sailors and marines from Jefferson's failed gunboat navy. The Kentucky militia, on the right bank of the river, however, standing alone, threw down their guns and ran away.

I'm sure this Court will have a lot to say about history. I am equally certain that it will not in fact be a reliable view of history, but rather a convenient one.
joefromchicago
 
  1  
Reply Thu 4 Mar, 2010 09:25 am
@wandeljw,
wandeljw wrote:
Highseas additionally points out that the plaintiff is black. His attorney, Alan Gura, also highlighted this aspect of the case in his introductory remarks:
Quote:
In 1868, our nation made a promise to the McDonald family that they and their descendants would henceforth be American citizens, and with American citizenship came the guarantee enshrined in our Constitution that no State could make or enforce any law which shall abridge the privileges or immunities of American citizenship.


McDonald, the plaintiff, was recruited by pro-gun groups specifically because he's black. He's not just some guy who walked off the street one day and said "I want to be the lead plaintiff in a second amendment case."

Gura's point was not just that the fourteenth amendment was designed to overturn the black codes and to enforce the Civil Rights Act of 1866, but that it was intended to apply the bill of rights to the states via the "privileges or immunities" clause. That argument, however, was rejected by the supreme court in the Slaughterhouse Cases in 1873, which led to the court selectively incorporating the bill of rights through the due process clause instead. As the justices at the McDonald oral argument pointed out, although that argument might be theoretically appealing, it would overturn about 140 years of supreme court precedent. Clarence Thomas might be willing to do that -- he has very little regard for precedents that he doesn't like -- but nobody else on the court seemed eager to take that step.

One interesting side note: the justices kept referring to the "privileges or immunities" clause as the "privileges and immunities" clause. Those are actually two different clauses: the former is in the fourteenth amendment, the latter is in article IV of the constitution. Since the former is really a dead letter, the justices might be excused for saying "and," probably out of habit, rather than "or."
High Seas
 
  0  
Reply Thu 4 Mar, 2010 09:26 am
@Setanta,
Setanta wrote:
.....would have been laughable, had it not been the occasion of so much misery in our history. The few examples in which militia performed well....I'm sure this Court will have a lot to say about history. I am equally certain that it will not in fact be a reliable view of history, but rather a convenient one.

The history involved has nothing to do with militias, and nothing to do with "reactionary" judges or their allegedly "convenient" views. The history the Supreme Court (and incidentally also David here) are referring to pertains directly to "privileges and immunities" granted to McDonald's ancestors in 1868 - so your digressions on Jefferson's navy and the like, while interesting, are wholly irrelevant. Look up the transcript (courtesy of Wandel) or the amici briefs (courtesy of Thomas) - both emphasize the relevant history as does the legal analyst of the NYT:
Quote:
“Due process,” after all, would seem to protect only 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.

0 Replies
 
High Seas
 
  0  
Reply Thu 4 Mar, 2010 09:30 am
@joefromchicago,
joefromchicago wrote:


McDonald, the plaintiff, was recruited by pro-gun groups specifically because he's black. He's not just some guy who walked off the street one day and said "I want to be the lead plaintiff in a second amendment case.

Rosa Parks was recruited by black activist groups to challenge the Jim Crow laws specifically because she was black - so does that disqualify her from sitting anywhere she wants in the bus? Is McDonald too stupid to bring a case to the USSC? If yes, what is your legal argument to that effect?
wandeljw
 
  1  
Reply Thu 4 Mar, 2010 09:32 am
Quote:
Daley rips Supreme Court on handgun ban stance
(BY FRAN SPIELMAN, Chicago Sun-Times, March 3, 2010)

During oral arguments this week, U.S. Supreme Court justices signaled their intention to overturn Chicago’s strictest-in-the-nation handgun ban.

Still, Mayor Daley isn’t giving an inch. In fact, he’s ridiculing the high court for affirming the Second Amendment right to bear arms while sitting in a protective bubble.

“Why can’t I go to the Supreme Court and sit there with a gun and listen to the arguments? If a gun is so important to us on the street or someone’s home, why can’t I go to the Supreme Court and sit there with a gun? I’m not gonna shoot anyone. But, I have a right to that gun,” Daley said, his voice dripping with sarcasm.

“Why can’t I go see my congressman who doesn’t believe in gun laws? Why can’t I carry my gun into congressmen’s offices or go to his home and knock on his door and say, ‘Don’t be worried. I have a gun. You want me to have a gun.’ Why is it they want to be protected by all the federal money ... to protect all the federal bureaucrats, but when it comes to us in the city” there’s no protection?

In a 2008 decision that Daley called “frightening,” the U.S. Supreme Court overturned Washington D.C.’s handgun ban on grounds that the Second Amendment establishes the right to own a handgun for personal self-defense.

At issue now is whether the Second Amendment applies to states as well as the federal government.

Even after overturning the D.C. ban, the Supreme Court specifically said governments can continue to ban people from carrying weapons around schools, public buildings and other situations that might endanger the public.

On Wednesday, Daley once again refused to discuss a fallback position. He was too busy arguing the merits " even in the face of almost certain defeat.

“There’s a reality, but also there should be passion and common sense. We assassinated President John F. Kennedy. We assassinated Martin Luther King. And we assassinated Robert F. Kennedy " and we’re proud of that. That’s the answer to problems with a gun. That is not,” Daley said, again ladling on the sarcasm.

“When a child gets shot or killed, that is a failure of society. Adults should stand up and say, guns don’t solve things in homes or streets. If it was, then everyone here would be carrying a gun in our own corporations.”

The D.C. Council subsequently replaced its overturned law with new regulations that require gun owners to receive five hours of safety training, register their firearms every three years and face criminal background checks every six years.

That just might be a roadmap Chicago is forced to follow.
Setanta
 
  1  
Reply Thu 4 Mar, 2010 09:33 am
See Joe's remarks on "privileges and immunities" versus "privileges or immunities."

I don't really give a rat's ass what you think about my remarks about history. My point, whether or not you are capable of understanding it, is that the notion of a militia protecting a free state was illusory at the outset. At no time did i suggest that those comments of mine on the essential irrelevance of the second amendment as per its stated purpose (the security of a free state) should condition the Court's decision. It is appropriate for me to point out that the Court is legislating from the bench, and that several members of this Court are reactionaries--whether you like it or not.
0 Replies
 
joefromchicago
 
  1  
Reply Thu 4 Mar, 2010 09:39 am
@High Seas,
High Seas wrote:
Rosa Parks was recruited by black activist groups to challenge the Jim Crow laws specifically because she was black - so does that disqualify her from sitting anywhere she wants in the bus?

Wow, that has to be one of the most monumentally stupid things ever written in this forum, and I've read a lot of okie's posts. Of course the NAACP had to find a black defendant to challenge the Jim Crow laws -- I don't think there were a lot of whites who were being arrested for refusing to move to the blacks-only section of the bus.

High Seas wrote:
Is McDonald too stupid to bring a case to the USSC? If yes, what is your legal argument to that effect?

I have no idea if McDonald is too stupid to bring a case before the supreme court. I've read a newspaper interview of him -- he seems like a reasonably intelligent fellow. But then I never said anything about his intelligence. I just said he was recruited by the pro-gun lobby to be the lead plaintiff in this case. As the linked article states:

Quote:
McDonald and three co-plaintiffs were carefully recruited by gun-rights groups attempting to shift the public perception of the Second Amendment as a white, rural Republican issue. McDonald, a Democrat and longtime hunter, jokes that he was chosen as lead plaintiff because he is African-American.
maporsche
 
  1  
Reply Thu 4 Mar, 2010 09:57 am
@wandeljw,
I can't wait to vote against that bastard in 2011.
High Seas
 
  -1  
Reply Thu 4 Mar, 2010 10:17 am
@joefromchicago,
You know very little history on Jim Crow, Joe - I worked in Mobile, Alabama for quite some time and managed to learn something that has eluded your learned opinions up North: Rosa Parks was a longtime black activist, and no casual "cleaning woman" wandering onto a bus after a long day of washing white folks' floors.

You do bring up an interesting point though in "privileges AND immunities" vs the correct "privileges OR immunities": the first to use the erroneous "AND" was Sotomayor, surely the only justice ever appointed to have to spend years in college in classes for remedial English and grammar. Speaking after her, Ginsburg and Kennedy picked up Sotomayor's error - whether on purpose or by mistake is impossible to say - until Clement, counsel for plaintiffs, finally introduces the correct "OR". Very interesting, thank you!
High Seas
 
  0  
Reply Thu 4 Mar, 2010 10:26 am
@joefromchicago,
joefromchicago wrote:

.... Of course the NAACP had to find a black defendant to challenge the Jim Crow laws -- I don't think there were a lot of whites who were being arrested for refusing to move to the blacks-only section of the bus....

Further proof you know nothing of the events in Birmingham immediately preceding the assassination of Martin Luther King: a bus, full of both black and white activists, drove all the way to Alabama from DC; all of them (black and white) were pulled off the bus and mercilessly beaten while Birmingham police - having cut a deal with the white mob that nobody would get killed - placidly stood by until it was all over. Photographers, journalists, and other bystanders had their cameras and documents smashed and torn - that's one of the easiest things to look up - so please learn the facts before you start with insulting those who do know them or quoting unrelated third parties like Okie.
0 Replies
 
High Seas
 
  2  
Reply Thu 4 Mar, 2010 10:30 am
@wandeljw,
There's something very profoundly comical in that statement by Mayor Daley (son of the Mayor Daley of liberal-activist-beating, tombstone-vote-counting fame) suddenly stepping forth in defense of anybody's constitutional rights Smile
0 Replies
 
joefromchicago
 
  1  
Reply Thu 4 Mar, 2010 10:46 am
@High Seas,
High Seas wrote:

You know very little history on Jim Crow, Joe - I worked in Mobile, Alabama for quite some time and managed to learn something that has eluded your learned opinions up North: Rosa Parks was a longtime black activist, and no casual "cleaning woman" wandering onto a bus after a long day of washing white folks' floors.

I never said anything about Rosa Parks, so I'm not sure why you're making a big deal of it. I know that Parks wasn't just some random person who happened to refuse to move to the back of the bus that day -- indeed, I know that Parks wasn't the first person to test Alabama's Jim Crow laws in that fashion. But then I don't care, since this isn't a thread about Rosa Parks or the fight for desegregation. If you want to start a thread entitled "All the Things I Know About the 1960s and You Don't," there's nobody stopping you.

High Seas wrote:
You do bring up an interesting point though in "privileges AND immunities" vs the correct "privileges OR immunities": the first to use the erroneous "AND" was Sotomayor, surely the only justice ever appointed to have to spend years in college in classes for remedial English and grammar. Speaking after her, Ginsburg and Kennedy picked up Sotomayor's error - whether on purpose or by mistake is impossible to say - until Clement, counsel for plaintiffs, finally introduces the correct "OR". Very interesting, thank you!

Big deal. Gura made the same mistake (p. 5, lines 23-25):

Quote:
MR. GURA: Although it's impossible to give a full list of all the unenumerated rights that might be protected by the Privileges and Immunities Clause...
0 Replies
 
joefromchicago
 
  1  
Reply Thu 4 Mar, 2010 10:55 am
@maporsche,
maporsche wrote:

I can't wait to vote against that bastard in 2011.

Since when did they allow suburbanites to vote in Chicago mayoral elections?
maporsche
 
  1  
Reply Thu 4 Mar, 2010 11:05 am
@joefromchicago,
I will be a Chicago resident on 4/3/10.
Cycloptichorn
 
  1  
Reply Thu 4 Mar, 2010 11:06 am
@maporsche,
maporsche wrote:

I will be a Chicago resident on 4/3/10.


Get some cool new digs in the city?

Cycloptichorn
maporsche
 
  1  
Reply Thu 4 Mar, 2010 11:24 am
@Cycloptichorn,
Still looking, but yeah. Lincoln Park probably.
0 Replies
 
Brandon9000
 
  2  
Reply Thu 4 Mar, 2010 12:20 pm
The 2nd Amendment states that the right of the PEOPLE to keep and bear arms shall not be infringed. It doesn't seem like it would take "judicial legistation" to interpret this. If you can stare at these words and insist that it doesn't mean what it says, more power to you.
Setanta
 
  1  
Reply Thu 4 Mar, 2010 12:46 pm
@Brandon9000,
If you can stare at those words and state that it is a guarantee of a right to keep and bear arms based on a principle of a right to personal self-defense, more power to you.
 

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