McDonald v. Chicago

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!"

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.

Yeah, but what about bazookas?

If a state government were to set up a body similar to the Swiss Militia, it could probably be successfully argued that those militiamen have the right to have bazookas -- at least if the state government made bazookas part of their militia's official arsenal.

If a state government were to set up a body similar to the Swiss Militia, it could probably be successfully argued that those militiamen have the right to have bazookas -- at least if the state government made bazookas part of their militia's official arsenal.

Why is that important?

That's a big "if" though. (The Swiss militia don't have bazookas in their home.)

joefromchicago wrote:

Why is that important?

Because I think it would be nearly impossible to justify covering bazookas under a personal self defense right.

If a state government were to set up a body similar to the Swiss Militia, it could probably be successfully argued that those militiamen have the right to have bazookas -- at least if the state government made bazookas part of their militia's official arsenal.

Probably pretty difficult to justify covering machine guns under a personal self defense right as well.

It doesn't say based on anything, nor does it have to.

It says that there shall be no laws limiting the right of the people to keep and bear weapons. It says that in English words. That's what the words say. I'm not sure how else I can put it.

The right to keep and bear arms is predicated upon the necessary security of a free state, as provided by a well regulated militia.

That conditioned the comment in United States versus Miller to the effect that the Court did not know that shotguns having a barrel of less than 18" in length was an arm intended for the use of the militia.

oralloy wrote:

joefromchicago wrote:

Why is that important?

Because I think it would be nearly impossible to justify covering bazookas under a personal self defense right.

That's not why I asked. You said:

Quote:

If a state government were to set up a body similar to the Swiss Militia, it could probably be successfully argued that those militiamen have the right to have bazookas -- at least if the state government made bazookas part of their militia's official arsenal.

The militia requirement, however, is the focus of the Presser decision, and it gave rise to the notion that the second amendment was a collective right tied to the state's requirements for a militia. Heller pretty much rejected that reasoning. So why would you suggest that, "if the state government made bazookas part of their militia's official arsenal," individuals (or, at least, members of the militia) would be able to possess bazookas? Isn't that taking the Presser "collective right" side in this debate?

oralloy wrote:

Probably pretty difficult to justify covering machine guns under a personal self defense right as well.

Well, now you're just confused. Earlier you said that you favored private ownership of submachine guns. If they can't be justified under a personal self-defense right, then what would justify the private ownership of machine guns?

I see the right described in Heller as being covered by the Ninth Amendment.

I see the collective version as being the correct interpretation of the Second Amendment, but I think the government violates the Constitution by not having an organization like the Swiss Militia for people to join.

I'm not saying it would be justified under a Heller-type personal self-defense right. I'm just saying I'd like to see it happen.

If it happened, it would have to be done through having the legislature change the law, instead of by suing in court.

I don't know why the hell you're talking about "the Presser Court."

I don't see any basis, other than your quixotic desire to align yourself with what you imagine to be the values of American libertarians, to come to the conclusion that that ruling was a mistake.

oralloy wrote:

I see the collective version as being the correct interpretation of the Second Amendment, but I think the government violates the Constitution by not having an organization like the Swiss Militia for people to join.

So you think an individual's right to bear arms is covered by the ninth amendment, and that the second amendment requires the states to maintain militias? Really?