14
   

McDonald v. Chicago

 
 
oralloy
 
  1  
Reply Thu 4 Mar, 2010 01:19 pm
@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!"


While I personally would love to see submachineguns for sale in every Wal-Mart in the country, and I am even more fond of the notion of AP ammo in the hands of all Americans, the mainstream of the gun rights movement prefers to focus on having bans on cosmetic aspects of assault weapons (like pistol grips) ruled unconstitutional, and on having the courts force cities to allow concealed handgun carry.

That's not to say someone somewhere won't sue to try to overturn the oppressive restrictions on full auto weapons. It probably won't be Gura though.

Most likely next stop for Gura after this is Hawaii's ban on assault weapons.
joefromchicago
 
  1  
Reply Thu 4 Mar, 2010 01:23 pm
@oralloy,
Yeah, but what about bazookas?
Brandon9000
 
  1  
Reply Thu 4 Mar, 2010 01:34 pm
@Setanta,
Setanta wrote:

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.

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.
oralloy
 
  1  
Reply Thu 4 Mar, 2010 01:47 pm
@joefromchicago,
joefromchicago wrote:
Yeah, but what about bazookas?


Personally, I have no objection to them being widely available.

It would be hard to argue that they would be covered under any personal self defense right however.

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.
Thomas
 
  1  
Reply Thu 4 Mar, 2010 02:24 pm
@oralloy,
oralloy wrote:
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.

That's a big "if" though. (The Swiss militia don't have bazookas in their home.)
joefromchicago
 
  1  
Reply Thu 4 Mar, 2010 02:27 pm
@oralloy,
oralloy wrote:
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? After all, that's taking a Presser view of the second amendment, not a Heller view.
oralloy
 
  1  
Reply Thu 4 Mar, 2010 02:50 pm
@joefromchicago,
joefromchicago wrote:
Why is that important?


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

Probably pretty difficult to justify covering machine guns under a personal self defense right as well.
oralloy
 
  1  
Reply Thu 4 Mar, 2010 02:51 pm
@Thomas,
Thomas wrote:
That's a big "if" though. (The Swiss militia don't have bazookas in their home.)


Yes, but it is the only way I can see such weapons being covered under the Second Amendment.

Unless someone can come up with a plausible reason why a bazooka is really suitable for self defense that is.
joefromchicago
 
  1  
Reply Thu 4 Mar, 2010 03:02 pm
@oralloy,
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?

joefromchicago 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?
Setanta
 
  1  
Reply Thu 4 Mar, 2010 03:09 pm
@Brandon9000,
Brandon9000 wrote:
It doesn't say based on anything, nor does it have to.


Yes it does.

Quote:
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.


Why not try putting it in the words actually used? 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. 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. It does not say that there shall be no laws limiting the right of the people to keep and bear arms--playing with the language does your argument no good.
Thomas
 
  1  
Reply Thu 4 Mar, 2010 03:13 pm
@Setanta,
Setanta wrote:
The right to keep and bear arms is predicated upon the necessary security of a free state, as provided by a well regulated militia.

Preceded? Sure. Predicated? That's an interpretation, and a dubious one at that.

Setanta wrote:
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.

Well, that was quite silly of the Presser court. I hope the current Supreme Court will correct its mistake.
joefromchicago
 
  1  
Reply Thu 4 Mar, 2010 03:21 pm
@joefromchicago,
Sorry, I keep saying Presser. I meant Miller v. United States. Presser is a different case.
Thomas
 
  1  
Reply Thu 4 Mar, 2010 03:22 pm
@joefromchicago,
They sound similar don't they? I mixed them up as well, so, no harm done as far as I am concerned.
Thomas
 
  1  
Reply Thu 4 Mar, 2010 03:23 pm
@oralloy,
Fair enough.
0 Replies
 
joefromchicago
 
  2  
Reply Thu 4 Mar, 2010 03:36 pm
@Thomas,
Yeah, it's easy to get those confused. They're both second amendment cases, they just say different things. Sorta' like the "privileges and immunities" clause and the "privileges or immunities" clause. If the supreme court can get those two mixed up, I don't feel so bad about mixing up Presser and Miller.
0 Replies
 
Setanta
 
  1  
Reply Thu 4 Mar, 2010 03:37 pm
@Thomas,
No, it's not a "dubious interpretation." See United States versus Miller. I don't know why the hell you're talking about "the Presser Court." If you refer to Presser versus Illinois, that was ruled upon in 1888. I suspect that we are safe in assuming that no members of that Court were still sitting when the ruling in Miller was handed down in 1939.

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. But while we're at it, i consider that decision in Heller to have been a mistake, and for thousands (perhaps even millions) of Americans as yet unborn, a tragedy. The world has turned many, many times since the first Congress (which met, by the way, for the first time on this day in 1789) promulgated twelve proposed amendments to the constitution. The fourth one which they proposed was the second one to be ratified. I am, in fact disgusted (but not surprised) that this essentially reactionary Court is so eager to shove their right-wing views down the collective throat of the nation that they would wish to enshrine the values of the sociopathic frontier in contemporary America.
oralloy
 
  1  
Reply Thu 4 Mar, 2010 03:43 pm
@joefromchicago,
joefromchicago wrote:
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?


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.




joefromchicago wrote:
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'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.
joefromchicago
 
  3  
Reply Thu 4 Mar, 2010 03:50 pm
@oralloy,
oralloy wrote:
I see the right described in Heller as being covered by the Ninth Amendment.

Funny, nobody on the supreme court saw it that way.

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?

oralloy wrote:
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.

OK, fair enough. Live the dream!
Thomas
 
  4  
Reply Thu 4 Mar, 2010 03:53 pm
@Setanta,
Setanta wrote:
I don't know why the hell you're talking about "the Presser Court."

Because I had confused Presser with Miller. Perhaps you had started your response after I corrected myself.

Setanta wrote:
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.

The reason is that I consider it a fallacy to construe "preceded" as meaning "predicated".

American legislation is ripe with laws of the structure "Whereas (x1, x2, x3, ...), be it enacted that (operative clause 1, operative clause 2, operative clause 3, ...)". American courts never treat the "whereas" clauses as constraining the reach of the operating clauses. They merely explain why those clauses are there.

Similarly, some bills of rights in state constitutions had operative clauses on other rights preceded by "whereas-like" clauses. See, for example, the free press clause in Rhode Island's constitution: "The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject, being responsible for the abuse of that liberty" No judge ever interpreted the part before the comma as a constraint on the freedom of speech in Rhode Island. Analogously with "whereas" clauses in statutes, they treated clauses like that as explanations of why the substantive clauses where there, not as constraints on what they meant.

Hence, I consider it a gratuitous over-interpretation of the Second Amendment's grammatical structure to say that the part before the second comma constrains the right granted in the operative clause.
oralloy
 
  1  
Reply Thu 4 Mar, 2010 03:58 pm
@joefromchicago,
joefromchicago wrote:
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?


Yes. I see the first half of the Second Amendment as a requirement that the states maintain militias. And I see the second half of the Second Amendment as being the right of those militiamen to be adequately armed.

I see the Ninth Amendment as covering guns for personal self defense for non-militiamen (or even off duty militiamen who might have to have their militia equipment stored at home in a safe).
 

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