14
   

McDonald v. Chicago

 
 
Setanta
 
  1  
Reply Fri 5 Mar, 2010 04:44 pm
@maporsche,
That problem is inherent in gun control. The fact that a certain body of citizens are law-abiding necessarily means that they will be the first ones to be disarmed because they will comply with the law. Perhaps some sort of "grandfathering" solution might be cobbled together, but i find it difficult to imagine what would work. One of the biggest problems is that gun manufacturers have a vested interest in opposing handgun control, and both legally manufactured guns and illegally smuggled guns are awash in society. It would take a hell of a long time to rid society of all of those guns. And, once again, because by definition, law-abiding citizens are the ones who would immediately comply, they will necessarily be disarmed first.
Setanta
 
  0  
Reply Fri 5 Mar, 2010 04:48 pm
Again, stating that i think handguns should be banned doesn't mean that i'm so foolish as to think that it will happen.
0 Replies
 
roger
 
  2  
Reply Fri 5 Mar, 2010 04:51 pm
@Setanta,
I have always been suspicious of grandfather clauses. They always come across as "I've got mine, as is right and proper. Screw you guys". In other words, sort of a bribe to secure a vote you know is wrong.

I notice Ford has gone to a two tier wage schedule. New hires are screwed. So much for union brotherhood.
OCCOM BILL
 
  1  
Reply Fri 5 Mar, 2010 04:57 pm
Set continues to ignore the fact that the Court blatantly ignored 158 year old precedent from Plessy v. Ferguson to abolish "separate but equal" in these United States in Brown v. Board of Education... in a 9-0 vote… and has trended in that direction ever since. His complaints that the court didn't follow a doctrine of stare decisis in Heller would otherwise be exposed as ridiculous. The Supreme Court of United States is not bound by stare decisis for good reason, and Brown v. Board illustrates this simple truth better than any other case… with the possible exception of Cruikshank. But it’s hardly the only example, as the last half century or so has seen Incorporation of most of the Bill of Rights. A rational view of the last half a century or so sees the court leaning towards incorporation wherever reasonable... and to rely on an abomination like Cruikshank should be cause for shame in itself. Cruikshank is an ugly racist stain on the United States, which has already been chopped to pieces in large part and not only should it NOT be relied upon; it should be apologized for.
Setanta
 
  1  
Reply Fri 5 Mar, 2010 05:01 pm
@roger,
I agree, but i don't really know how the situation would be reasonably dealt with, and MP's objection would be very likely loudly articulated.
0 Replies
 
maporsche
 
  1  
Reply Fri 5 Mar, 2010 05:01 pm
So, does everyone pretty much think that McDonald will be 5-4 in favor of the plaintiff?

Will the new Heller precedent mean nothing to the 4 who opposed Heller? If so, does anyone have a problem with that?
Setanta
 
  1  
Reply Fri 5 Mar, 2010 05:08 pm
@OCCOM BILL,
Ah, a wonderful example of the extent to which a little knowledge is a dangerous thing. First, i have not critcized Heller as a departure from precedent, as i've already explained very recently in this thread. Second, i did not offer Cruikshank as an example of a precedent which had been ignored, i simply pointed it out as one decision of the Court in which the Court took notice that the second amendment binds the national government but not the states. Finally, although it might be reasonable to claim that the decision Cruikshank had a racist motivation, i rather doubt if you know enough about the members of that Court and their personal opinions to make a charge like that stick. Perhaps if you had really bothered to educate yourself, you'd know that the Court rejected the indictment because it stated that the fourteenth amendment only binds governments and their agents, and not individuals. I'll try to make it simple for you: the Court said that the indictments were not legal because individuals are not constrained to assure due process of law to other individuals.

So, in summary, i've not objected to Heller as a violation of precedent, so your silly little rant is meaningless.
wandeljw
 
  2  
Reply Fri 5 Mar, 2010 05:13 pm
@maporsche,
maporsche wrote:

So, does everyone pretty much think that McDonald will be 5-4 in favor of the plaintiff?

Will the new Heller precedent mean nothing to the 4 who opposed Heller? If so, does anyone have a problem with that?


I think the decision in McDonald involves more than the Heller precedent. Heller involved the District of Columbia, a peculiarly federal jurisdiction. All nine justices will need to consider if the second amendment trumps the police authority of state and local government.
0 Replies
 
joefromchicago
 
  3  
Reply Fri 5 Mar, 2010 05:19 pm
@maporsche,
maporsche wrote:

So, does everyone pretty much think that McDonald will be 5-4 in favor of the plaintiff?

Will the new Heller precedent mean nothing to the 4 who opposed Heller? If so, does anyone have a problem with that?

I don't have any problem with that.

You're assuming that Heller and McDonald address the same constitutional issue. They don't. The fact that McDonald deals with the applicability of the second amendment to the states is sufficient to distinguish it from Heller, which didn't. If the justices think that the second amendment isn't incorporated through the due process clause, they should vote in favor of Chicago, and that result wouldn't be inconsistent with Heller, which said nothing about incorporation.

Furthermore, if the justices think that Heller was wrongly decided, then there's nothing to say that they shouldn't vote against McDonald, even if they think that Heller and McDonald are indistinguishable. The court has typically taken the view that old precedent has more binding force than new precedent. There are a lot of reasons for that (I won't go into it, unless you're interested), but it's not something that the justices like to admit. Nevertheless, we've seen it in practice a number of times, from both the right and the left.
OmSigDAVID
 
  0  
Reply Fri 5 Mar, 2010 06:18 pm
@maporsche,
maporsche wrote:
I should add that I'm not in total disagreement with your view.

I think the need for guns is in large part due to the existance of guns and the danger they pose in the wrong hands.
I agree with you here.

I just don't think that disarming the law-abiding citizens FIRST is the right answer.
TECHNICALLY, it woud be an EXAGGERATION
to say that there is NO SUCH THING as a "law abiding citizen"
in that newly born babies have not yet had time
to violate any laws and this may persist during the earliest years
of childhood, but after thay can walk and talk, it is almost IMPOSSIBLE
to remain law abiding citizens.

If u r ten minutes late in feeding the parking meter,
u know that u violated the law, or if the lite turns red
as u pass thru the intersection, u know it, but we live amidst
multiple webs of statutory, common law and administrative rules, federal, state & municipal
of whose existence we r not aware, that we commonly violate laws all the time,
the same way that we unknowingly and non-maliciously crush lower life forms
(small insects) as we walk down the street.

For instance:
some years ago, I attended a symposium qua federal and New York
employment law for lawyers who had significant practices in that area.
There were a few 100 lawyers in attendance in the audience.
On the stage, were numerous experts very senior in the profession, some judges,
and commissioners and whose practices were dedicated to that area of professional concern.
Their combined seniority in professional practice probably aggregated to centuries on-the-job.

During Q. & A. from the audience, thay addressed many possible situations including the dynamic relationships
between federal statutes among themselves, New York interpretive judicial decisions,
federal interpretive judicial decisions and administrative regulations.

Concerning one scenario, answering the question of a lawyer
from the audience, thay reached a consensus after about half
an hour of debate. In the face of a follow-up question from
another lawyer from the audience, as to whether implimenting their advice
violated a statute of New York, upon a few minutes of consideration:
thay admitted that it did; i.e., the super-experts
had advised the lawyers to do thus and so in that scenario,
which upon re-consideration (later, after this flaw was detected)
thay admitted was against State law of NY. THEREFORE, if some citizen
took the collective advice of the group of extra super erudite legal experts:
he woud thereby violate the law of NY, and be held accountable for it.



My point is THIS:
If the extra senior superexperts exalted in honor and wisdom up onto the stage above the other lawyers
did not know what the laws require, then what chance
does a fellow with a high school diploma have of remaining innocent
of violating laws?????


Quad est demonstratum:
the Saints and Angels philosophy of the 2nd Amendment is devoid of merit.

The Founders of this Republic did NOT write the Bill of Rights
to protect the SAINTS and ANGELS of America.
Thay wrote it for every citizen of America.

If a man commits crimes, then he shoud be imprisoned for a long time, or killed,
for committing those crimes.

If a man is intolerably dangerous because of mental defect
(which I 'm sure that many on this forum will attribute that defect to ME),
then he shoud be ISOLATED from the decent people, the same as Typhoid Mary was.

Violent criminals who choose to commit robbery or murder, be thay sane or not,
have no interest in obaying gun control laws or obaying marijuana laws.
As the law has not prevented criminals from getting & having marijuana
and stopped no one from getting alcohol in the 1920s,
will not stop anyone from getting guns on the blackmarket.

That is an exercise in futility and foolishness.




David
Irishk
 
  1  
Reply Fri 5 Mar, 2010 07:02 pm
@OmSigDAVID,
I don't think you're crazy. It's not like you want to outfit your car with hellfire missiles or anything, right?









Right?????
Laughing
OCCOM BILL
 
  0  
Reply Fri 5 Mar, 2010 09:29 pm
@Setanta,
Setanta wrote:

Ah, a wonderful example of the extent to which a little knowledge is a dangerous thing.
Boy, you got that right.

Setanta wrote:
First, i have not critcized Heller as a departure from precedent, as i've already explained very recently in this thread. Second, i did not offer Cruikshank as an example of a precedent which had been ignored, i simply pointed it out as one decision of the Court in which the Court took notice that the second amendment binds the national government but not the states.
Rolling Eyes A simple scroll back reveals:
Previously, Setanta wrote:

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.
This significant break with precedent has been ongoing, for over half a century, cleaning up the tragic error of that court... an error that gave the green light to a century + of continued rabid racism. Of what purpose was the granting of Rights to blacks, if the racist South was to be allowed to utterly ignore the Bill of Rights with impunity?

Setanta wrote:
Finally, although it might be reasonable to claim that the decision Cruikshank had a racist motivation, i rather doubt if you know enough about the members of that Court and their personal opinions to make a charge like that stick. Perhaps if you had really bothered to educate yourself, you'd know that the Court rejected the indictment because it stated that the fourteenth amendment only binds governments and their agents, and not individuals. I'll try to make it simple for you: the Court said that the indictments were not legal because individuals are not constrained to assure due process of law to other individuals.
Go back to wiki at least long enough educate yourself on the racist disaster Cruikshank represents. Blacks were denied their newly acquired Bill of Rights practically across the board, while being heinously oppressed and murdered... and the vast majority of this cowardly court's folly has already been corrected. Again; what purpose does the 14th amendment serve without State Incorporation? Over a hundred black men were murdered by Cruikshank & Co. and Louisiana could just about care less. Rather than giving the 14th amendment its intended teeth; this disastrous decision paved the way for racist assholes to continue to oppress the black man for another century. Which other parts of Cruikshank that have subsequently been voided by Incorporation do you have a quibble with? Any?

Setanta wrote:
So, in summary, i've not objected to Heller as a violation of precedent, so your silly little rant is meaningless.
Rolling Eyes So, in summary, you are either too dishonest, or too ignorant to admit the truth when you get caught peddling nonsense.

Let’s examine what this cowardly court actually did:

Quote:
The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It "derives its source," to use the language of Chief Justice Marshall in 22 U. S. 211, "from those laws whose authority is acknowledged by civilized man throughout the world." It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The Government of the United States, when established, found it in existence, with the obligation on the part of the States to afford it protection. As no direct power over it was granted to Congress, it remains, according to the ruling in Gibbons v. Ogden, id.,@ 22 U. S. 203, subject to State jurisdiction.


In other words, the 14th amendment offered the black man equal protection anywhere he already had it, but expanded it not one iota where he didn’t. Purpose?

Quote:
The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States.
Here again we see the 14th amendment offered the black man equal protection anywhere he already had it, but expanded it not one iota where he didn’t. Purpose?

Quote:
The third and eleventh counts are even more objectionable. They charge the intent to have been to deprive the citizens named, they being in Louisiana, "of their respective several lives and liberty of person without due process of law." This is nothing else than alleging a conspiracy to falsely imprison or murder citizens of the United States, being within the territorial jurisdiction of the State of Louisiana. The rights of life and personal liberty are natural rights of man. "To secure these rights," says the Declaration of Independence, "governments are instituted among men, deriving their just powers from the consent of the governed." The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these "unalienable rights with which they were endowed by their Creator." Sovereignty, for this purpose, rests alone with the States. It is no more the duty or within the power of the United States to punish for a conspiracy to falsely imprison or murder within a State, than it would be to punish for false imprisonment or murder itself.
Really? “The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these "unalienable rights with which they were endowed by their Creator”, but at the same time if Louisiana chooses to turn the blind eye to wanton murder and utterly disregards these “unalienable rights” it is up to Louisiana to police itself? Huh?

Quote:
The Fourteenth Amendment prohibits a State from depriving any person of life, liberty, or property without due process of law, but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society.
This obscenity essentially licensed racists to rape and murder at will in any State that chose to ignore crimes against blacks… which is pretty much what they did. Again, what purpose is served by the 14th amendment if the racist’s in power can prevent the oppressed from voting, or having their votes count in this case, stopping at nothing short of murder to accomplish it; and then this cowardly Court is going to pretend the appropriate place to seek relief is the very State turning the blind eye to murder and oppression? How does that make any sense to anyone? Clearly, this Supreme Court saw blacks as something less than whites, and their tortured apology for not enforcing the Bill of Rights as directed by the 14th Amendment was obscene. The Colfax Massacre couldn’t have been any more racist. White assholes murdered at least 150 black men for having the gall to try and stand up for an election victory. Considering only 3 white men died in what the racist assholes of the South referred to as the “Colfax Riot” one should have little doubt over whether or not this was an incident of racist mass-murder, perpetrated precisely to oppress blacks… and condoned by Louisiana before, during, and after the fact.

Quote:
The fourth and twelfth counts charge the intent to have been to prevent and hinder the citizens named, who were of African descent and persons of color, in "the free exercise and enjoyment of their several right and privilege to the full and equal benefit of all laws and proceedings, then and there, before that time, enacted or ordained by the said State of Louisiana and by the United States, and then and there, at that time, being in force in the said State and District of Louisiana aforesaid, for the security of their respective persons and property, then and there, at that time enjoyed at and within said State and District of Louisiana by white persons, being citizens of said State of Louisiana and the United States, for the protection of the persons and property of said white citizens."
Through what demented prism can the armed capture and execution of free men for the purpose of overturning a freely won election, be ignored this time?

Quote:
There is no allegation that this was done because of the race or color of the persons conspired against. When stripped of its verbiage, the case as presented amounts to nothing more than that the defendants conspired to prevent certain citizens of the United States, being within the State of Louisiana, from enjoying the equal protection of the laws of the State and of the United States.
He must be joking, right? Sadly, no.

Quote:
The Fourteenth Amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add anything to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.
Here again we see the absurd copout that licenses white racists to oppress its black fellow citizens for as long as they can successfully keep them from empowering themselves within the state, by any means, including, but not limited to, cold blooded murder. How a Supreme Court Justice could write such a thing without considering the black man something less than the white man is beyond me.

Quote:
No question arises under the Civil Rights Act of April 9, 1866 (14 Stat. 27), which is intended for the protection of citizens of the United States in the enjoyment of certain rights, without discrimination on account of race, color, or previous condition of servitude, because, as has already been stated, it is nowhere alleged in these counts that the wrong contemplated against the rights of these citizens was on account of their race or color.
Believe it or not, this imbecile wrote this just 3 paragraphs before writing this:
Quote:
The sixth and fourteenth counts state the intent of the defendants to have been to hinder and prevent the citizens named, being of African descent, and colored, "in the free exercise and enjoyment of their several and respective right and privilege to vote at any election to be thereafter by law had and held by the people in and of the said State of Louisiana, or by the people of and in the parish of Grant aforesaid."
Yet somehow he remains unclear of whether or not race was an issue. Rolling Eyes

Quote:
In @ 88 U. S. 214, we hold that the Fifteenth Amendment has invested the citizens of the United States with a new constitutional right, which is, exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. From this, it appears that the right of suffrage is not a necessary attribute of national citizenship, but that exemption from discrimination in the exercise of that right on account of race, &c., is. The right to vote in the States comes from the States, but the right of exemption from the prohibited discrimination comes from the United States. The first has not been granted or secured by the Constitution of the United States, but the last has been.

Inasmuch, therefore, as it does not appear in these counts that the intent of the defendants was to prevent these parties from exercising their right to vote on account of their race, &c., it does not appear that it was their intent to interfere with any right granted or secured by the Constitution or laws of the United States. We may suspect that race was the cause of the hostility, but it is not so averred. This is material to a description of the substance of the offence, and cannot be supplied by implication. Everything essential must be charged positively, and not inferentially. The defect here is not in form, but in substance.
This is a bald faced lie. If in fact there even exists this defect, it most certainly is in form, not substance. I would certainly agree the indictment was written poorly, but that is inconsequential error as what it alleges is clear to anyone who gives it an honest read.

Quote:
We come now to consider the fifth and thirteenth and the eighth and sixteenth counts, which may be brought together for that purpose.
Here the court reasonably called the counts overbroad, which they most certainly were.

In sum, the court utterly and completely shirked its responsibility to enforce the 14th amendment (which of course was all about curtailing racism). In so doing they essentially set an absurd precedent that the protections offered therein were nothing more than inherent Rights of humanity, but that the States were free to wantonly abuse them at will and further that the very people being oppressed were somehow giving their approval by not overcoming their oppressors and changing the rules at the state level. This was then, and it now, absurd. Depending on whose count you believe; hundreds of free black men were surrounded, forced to surrender, and were subsequently murdered. This was met with passive approval by the State of Louisiana, and then by the Supreme court of our land. It was an abomination and a GIANT step backwards for Civil and even Human Rights.

The vast majority of the responsibilities shirked by this cowardly court have subsequently been corrected by later courts, which by then had the increased difficulty of overcoming notions of owing loyalty to this obscene decision in crafting their own. Brown v. Board punctuated the exposure of this type of racist doublespeak for what it is. It served to highlight not just the absurdity of “separate but equal”, but also the inherent flaw in pretending the Bill of Rights can serve its purpose without Incorporation to the States. The 2nd amendment’s consideration for this same treatment, while unpalatable to some for good reason, is nonetheless overdue. Incorporation presents no undue hardship on the States insofar as implementation, and unless we’re ready to start forfeiting the Bill of Rights back to State control there should be no question about how McDonald should be decided.



OCCOM BILL
 
  1  
Reply Fri 5 Mar, 2010 09:31 pm
@joefromchicago,
joefromchicago wrote:

The court has typically taken the view that old precedent has more binding force than new precedent. There are a lot of reasons for that (I won't go into it, unless you're interested),
Interested!
maporsche
 
  1  
Reply Fri 5 Mar, 2010 10:07 pm
@OCCOM BILL,
Yes, me too.
0 Replies
 
OmSigDAVID
 
  1  
Reply Fri 5 Mar, 2010 10:32 pm
@OCCOM BILL,
OCCOM BILL wrote:
joefromchicago wrote:
The court has typically taken the view that old precedent has more binding force than new precedent.
There are a lot of reasons for that (I won't go into it, unless you're interested),
Interested!
The earlier precedents were closer in time
to creation of the Constitution; the earlier courts were closer
to the temper of the times & the historical environment.
There is USSC precedent to this effect.





David
0 Replies
 
OmSigDAVID
 
  1  
Reply Fri 5 Mar, 2010 11:05 pm
@Irishk,
Irishk wrote:
I don't think you're crazy.
Thank u; I don 't think u r crazy either.
The point I sought to make is that if, unexpectedly, someone shoves u,
loses his balance in so doing and grabs u on his way down,
u might be accused of having participated in a violent altercation
and being a hot-head, after he broke his head on the sidewalk.
If the Saints & Angels Doctrine of the 2nd Amendment is applied
(i.e., that it is only for "law abiding citizens") then depending on,
how it hits the court that finds the facts in your particular case,
u might be screwed out of your right to defend your life or your child's life
with the tools of self defense, maybe forever.

Unexpected surprizes can happen to anyone; thay r not always good.

If entitlement doctrine of use of the 2nd Amendment
becomes that it is only for the use of American citizens
who NEVER VIOLATE ANY LAWS, then only the youngest children will be eligible to exercise 2nd Amendment rights.



Irishk wrote:
It's not like you want to outfit your car with hellfire missiles or anything, right?
Right; I don 't have plans to add much (or anything that I can think of, offhand)
to my modest gun collection. Those missles coud cause horrible traffic jams. I hate traffic jams.
Car fires r the WORST!
Thay 'll stop traffic for many miles.





David


0 Replies
 
OmSigDAVID
 
  1  
Reply Fri 5 Mar, 2010 11:19 pm
@maporsche,
maporsche wrote:
I think the need for guns is in large part due
to the existance of guns and the danger they pose in the wrong hands.
Do u allege that crime was less prevalent
b4 guns were invented, Maporsche ?





David
maporsche
 
  1  
Reply Fri 5 Mar, 2010 11:20 pm
@OmSigDAVID,
No, of course not.
OmSigDAVID
 
  1  
Reply Fri 5 Mar, 2010 11:31 pm
@maporsche,
maporsche wrote:
No, of course not.
5 years ago, I was so feeble I coud not walk, after abdominal surgery.
Sometime thereafter, as I walked to the parking lot of the hospital,
I thought that I better not get into any fights, because it is all I can do to remain vertical.

Is there a reason that I shoud NOT have been able to defend myself
with the technology that Man has made available?
MANY CITIZENS in NYC have been legally disarmed by
government in the name of keeping guns out of the rong hands,
the same way that thay always keep marijuana out of the rong hands
and the same way that in the 1920s no one was ever able to drink.
Prohibition always works, right ?

Y do u promote a fool 's errand ??





David
OCCOM BILL
 
  1  
Reply Fri 5 Mar, 2010 11:55 pm
@OmSigDAVID,
That's an excellent argument, David, but I don't think it will change Maporsche's mind any. (He already agrees with you.)
 

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