McDonald v. Chicago

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).

American courts never treat the "whereas" clauses as constraining the reach of the operating clauses. They merely explain why those clauses are there.

I consider your argument to be without merit.

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.

Setanta wrote:

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.

The one and only relevant question is whether the Founders intended the first phrase as a statement of limitation or as a descriptive example of the motivation for the second phrase. The Supreme Court has already ruled that it's the latter in Heller.

Furthermore, the court was right. Had the Founders only intended the Amendment to cover militias, it's hard to see why they would have made such a blanket statement as the second phrase, specifically referring to the people and deny the government the right to impose any limitation.

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.

Judicial Factions And The Constitution
(by Stuart Taylor Jr., National Journal Magazine, March 6, 2010)

The news from the March 2 oral argument in the Supreme Court's biggest pending case was that the five conservative justices seem poised to make the Second Amendment right to bear arms applicable to state and local gun controls, as well as federal. In the process, they will strike down the unusually strict handgun bans in Chicago and Oak Park, Ill. -- probably in June.

But debate about the gun case, McDonald v. City of Chicago, has ranged far beyond guns. It has spawned an alliance of convenience among distinguished scholars in the progressive and conservative-libertarian camps.

Both have filed amicus briefs that take the gun-rights side while mainly seeking to expand other rights as well.

The detailed constitutional arguments show with unusual clarity why efforts to expand rights -- whether favored by conservatives or liberals, or both -- typically boil down to a bare-majority judicial faction using highly debatable theories to override democratic governance.

Many of the briefs in the gun case urge the Court to revive the 14th Amendment's open-ended but long-moribund "privileges or immunities" clause and use it as a new fount of judicial power to strike down enactments imposed by majority rule. But the privileges-or-immunities alliance breaks down when its members are pressed on which laws should be struck down and which rights should be expanded or created.

Conservative libertarians who want the courts to reject economic regulations stress the considerable evidence that the authors of the privileges or immunities clause wanted to protect property and contract rights as well as gun rights.

Progressive scholars, on the other hand, see the same principles evolving over 142 years to mandate judicial protection of welfare rights -- called "the new property" by some -- as well as privacy, abortion, gay rights, assisted suicide, and other liberal favorites about which nobody was thinking when the 14th Amendment was adopted in 1868.

Both groups are armed with powerful historical evidence that the 1873 precedent that gutted the privileges or immunities clause, the Slaughterhouse Cases, misread the intent of the amendment's framers. The precedent also paved the way for subsequent decisions that helped Southern whites subjugate freed slaves by, among other things, disarming them and leaving them defenseless against the Ku Klux Klan.

But the justices who spoke during the oral argument on McDonald -- including those pushing to expand gun rights -- were hostile to the privileges-or-immunities justification. Justice Antonin Scalia deprecated the clause as "the darling of the professoriate."

Why so dismissive?

Were the justices showing respect for a deeply rooted, 137-year-old precedent, as several argued? Well, sure. They always show respect for precedent -- except when they don't.

Were they showing judicial restraint, by passing up a chance to grab more power? Doubtful. None of the nine justices has shown much modesty in finding support for his or her own policy preferences in the Constitution.

Were they worried about what their ideological adversaries (and future adversaries) might do with an open-ended license to conjure up new "privileges or immunities" by refracting selected fragments of historical evidence through their own philosophies?

That's my guess. The justices know that whatever clarity the text of this and other constitutional clauses may have once had has receded over many decades, as the clarity of a road sign recedes in the rearview mirror. They also know that the future content of a revived privileges or immunities clause would likely hinge on nothing more objective than the ideological leanings and policy preferences of future justices and the presidents who pick them.

You want the Court to comb through 19th-century history and find a mandate for unfettered capitalism? Vote Republican. You want it to impose welfare rights, with a heavy dose of judicial empathy? Vote Democratic. And hope for well-timed vacancies and long-lived justices who share your policy preferences.

Meanwhile, the notion of constitutional rights as immutable principles protecting our liberties from majoritarian tyranny morphs into rule by whichever faction happens to have a one-vote majority on the Supreme Court.

Shifting majorities have long advanced their own views incrementally by reading ambiguous historical evidence as supporting causes ranging from gun rights to gay rights, both of which have been put over the top by Justice Anthony Kennedy's conservative leanings on the former and liberal leanings on the latter.

But none of the nine -- except perhaps Justice Clarence Thomas, who was silent as usual during the argument in the gun case -- seems prepared to risk giving a privileges-or-immunities blank check to whichever faction may control the Court in the future.

Some history: The 14th Amendment was adopted in 1868, after many months of congressional hearings, primarily to give freed slaves the rights of full citizens and give Congress the power to override oppressive state and local laws, especially in the South.

Here's the critical language for purposes of the current debate: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; ... "

Historical evidence strongly suggests that the first clause was intended to make applicable against the states and their localities all provisions of the first 10 amendments (the Bill of Rights) -- which had previously limited only the federal government -- and perhaps also an unspecified number of other, unenumerated rights.

But the Supreme Court virtually nullified this broad language in the 1873 Slaughterhouse Cases by narrowing it to a few "privileges" and "immunities" rooted in federal citizenship, such as the right to be protected while at sea.

Subsequent decisions using similar logic helped facilitate the subjugation of blacks in the South for most of the next century. These rulings also help explain why most of the Bill of Rights, including the First Amendment, was not applied to state or local governments until the 1920s and thereafter.

By then, the Supreme Court had found another way to apply provisions of the Bill of Rights -- almost all of them, eventually -- against the states, along with other judicially recognized (or, critics say, judicially invented) rights including family privacy, contraception, and abortion. The Court construed the 14th Amendment's due process clause as "selectively incorporating" against the states those rights that the justices deemed fundamental to American liberty.

This "substantive due process" doctrine has been assailed by many conservative critics -- especially since Roe v. Wade -- and some liberals as a judicial power grab inconsistent with the language of the due process clause, which by its terms guarantees only procedural fairness.

But advocates of expansive judicial power to create new rights -- liberals and conservative libertarians alike -- have responded with strong evidence that the long-buried privileges or immunities clause was originally understood to give courts even broader powers than the due process clause.

Despite this evidence, Scalia, the great originalist, suggested that ancient and deeply rooted precedents trump original meaning. "Even I have acquiesced" in the legitimacy of substantive due process, he said, even though "I think it's wrong."

A deeper question, in my view, is this: Why should the words of a few congressional leaders more than 140 years ago -- as seen through the diverse, distorting lenses of current Supreme Court majorities -- trump the views of elected majorities today?

As Justice Stephen Breyer asked, why should equivocal evidence of what was intended in 1868 wipe out a handgun ban thought by Chicago's elected leaders to have saved hundreds of 21st-century lives?

These fundamental questions about the 14th Amendment have come to the fore because of a big 5-4 decision in 2008. The Court held for the first time that the Second Amendment protects a right to "keep and bear arms" not only for service in now-defunct state militias -- as had long been widely assumed -- but also for self-defense against intruders and other, so-far-unspecified, individual uses.

The 2008 decision struck down the District of Columbia's broad handgun ban, while noting that other gun controls imposed by the federal government and its enclaves would be upheld if deemed reasonable by the courts. It left open the question before the Court now: Did the 14th Amendment make the same (or similar) gun rights applicable against state and local regulation?

I could see no clear winner in the 2008 decision's learned but clashing interpretations of the Second Amendment. "It seems almost perverse," I wrote then, "to be assessing what gun controls to allow based not on examining how best to save lives but on seeking to read the minds of the men who ratified the Bill of Rights well over 200 years ago."

It's almost as hard to read the minds of those who wrote the 14th Amendment 142 years ago. They do seem to have intended to protect the rights of freed slaves and others to have guns to defend themselves against KKK terror. But the rest, or most of it, is in the eye of the beholder.

Your interpretation is idiosyncratic and hardly consistent with the Court's decisions over time. The Court, far from finding that the national government is prohibited from imposing any limitation, has interpreted the amendment specifically to refer to militia participation--hence, the opinion in Miller, to which i have frequently referred.

As for Heller, as i have repeatedly pointed out, this Court has struck out on new ground with that opinion, especially the contention about a right of personal self defense. I can accept that they've done so, and may wreak more havoc in the future--but that doesn't mean i have to believe they are right, just because they exercise a judicial fiat. After all, if you want to argue against the point of view in Miller, am i not equally entitled to argue against the point of view in Heller?

What makes you think that there is any "view of things" which i have regarding amendment of the constitution which differs from the provision for amendment which is in the constitution itself? This is the complete text of Article V of the constitution:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

That is how, "in my view," the constitution would be amended.

The constitution is amended in the manner provided for, which i have quoted to you.

Cheeses gripes . . . are you just being willfully obtuse? If you have some ulterior question here that you are not asking, ask it and be done. The constitution is amended in the manner provided for, which i have quoted to you.

...the Court has stated that the amendment binds the national government and not the states....