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]
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.
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.
.....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.
“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.
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.
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.
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?
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.
.... 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....
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!
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...
I can't wait to vote against that bastard in 2011.
I will be a Chicago resident on 4/3/10.